NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 06 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HERLINA SNIDER, No. 09-17532
Plaintiff - Appellant, D.C. No. 3:07-cv-00583-RCJ-
RAM
v.
GREATER NEVADA LLC, DBA Greater MEMORANDUM*
Nevada Mortgage Services; DERRY
GILMORE,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted March 16, 2011
San Francisco, California
Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
Plaintiff-appellant Herlina Snider appeals the district court’s decision
granting summary judgment to her former employer, defendant-appellee Greater
Nevada, LLC (“Greater Nevada”), on her claims of national origin discrimination,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
retaliation, and constructive discharge. Snider also appeals the district court’s
denial of her Motion for Relief from Judgment. Because the parties are familiar
with the factual and procedural history of this case, we do not recount additional
facts except as necessary to explain the decision.
We review the district court’s grant of summary judgment de novo. Lindahl
v. Air France, 930 F.2d 1434, 1436 (9th Cir. 1991). We review the denial of a
Federal Rule of Civil Procedure 59(e) motion to alter or amend a judgment for
abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993). Jurisdiction is proper under 28 U.S.C. § 1291, and we
affirm.
1. National origin discrimination claim
We affirm the district court’s grant of summary judgement to Greater
Nevada on Snider’s Title VII national origin discrimination claim. Snider has not
provided sufficient evidence to demonstrate that Greater Nevada’s legitimate non-
discriminatory reason for eliminating her position is pretext for unlawful
discrimination.
A plaintiff may demonstrate pretext: “(1) indirectly, by showing that the
employer’s proffered explanation is unworthy of credence because it is internally
inconsistent or not otherwise believable, or (2) directly, by showing that unlawful
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discrimination more likely motivated the employer.” Chuang v. Univ. of Calif.
Davis, 225 F.3d 1115, 1127 (9th Cir. 2000). Here, the record does not support a
conclusion that Greater Nevada’s cost-saving explanation is unbelievable.
Additionally, Snider’s evidence of an underlying discriminatory bias is insufficient
to raise a genuine issue of material fact because she does not present any direct
evidence of discrimination and her circumstantial evidence is not significant or
substantial. See EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009).
2. Retaliation claim
We affirm the district court’s grant of summary judgment to Greater Nevada
on Snider’s Title VII retaliation claim. To establish a prima facie case of
retaliation, Snider must demonstrate, inter alia, that she “opposed” a
discriminatory practice within the meaning of Title VII. See 42 U.S.C. § 2000e-
3(a); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2004).
Because it was not possible to discern from the context of Snider’s statements to
Gerene Sayres that she opposed an unlawful practice, she did not establish the
opposition element of a prima facie retaliation case. See EEOC v. Crown
Zellerbach Corp., 720 F.2d 1008, 1012-13 (9th Cir. 1983).
3. Constructive discharge claim
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We affirm the district court’s grant of summary judgment to Greater Nevada
on Snider’s constructive discharge claim. Constructive discharge occurs when
working conditions become “sufficiently extraordinary and egregious to overcome
the normal motivation of a competent, diligent, and reasonable employee to remain
on the job to earn a living and to serve his or her employer.” Brooks v. City of San
Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (internal quotation marks omitted). To
succeed on a constructive discharge claim, a plaintiff must demonstrate
aggravating factors beyond what is necessary to establish a discrimination claim.
See Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007); Bergene v. Salt River
Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1144 (9th Cir. 2001).
Here, summary judgment in favor of Greater Nevada was appropriate because
Snider did not show any aggravating circumstances beyond those alleged in her
basic discrimination claim.
4. Motion for relief from judgment
Finally, we hold that the district court did not abuse its discretion by denying
Snider’s Motion for Relief from Judgment. Because this motion was filed within
the time limits of Federal Rule of Civil Procedure 59(e), we treat it as a Rule 59(e)
motion. Am. Ironworkers & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892,
898-99 (9th Cir. 2001). Under Rule 59(e), reconsideration of the constructive
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discharge claim would have been appropriate if the district court had “committed
clear error or its initial decision was manifestly unjust.” ACandS, Inc., 5 F.3d at
1263. Both Nevada and federal law require plaintiffs bringing constructive
discharge claims to demonstrate aggravated and intolerable working conditions.
See Bergene, 272 F.3d at 1144; Dillard Dep’t Stores Inc. v. Beckwith, 989 P.2d
882, 885 (Nev. 1999). Thus, because of the similarities between state and federal
law, it was reasonable for the district court to conclude that its decision to analyze
any state law claim under federal law was not clearly erroneous or manifestly
unjust.
AFFIRMED.
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