FILED
NOT FOR PUBLICATION OCT 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA PULLIAM, No. 12-16834
Plaintiff - Appellant, D.C. No. 2:10-cv-01406-MMD-
GWF
v.
UNITED AIRLINES, INC., a Delaware MEMORANDUM*
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Submitted October 8, 2014**
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Angela Pulliam appeals from the district court’s grant of summary judgment
in favor of United Airlines on Pulliam’s claims for race and color discrimination and
retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1981 (“§ 1981”), and Nevada Revised Statutes Chapter 613. Reviewing de
novo, see Fin. Mgmt. Advisors, LLC v. Am. Int’l Specialty Lines Ins. Co., 506 F.3d
922, 925 (9th Cir. 2007), we affirm the judgment of the district court.1
Pulliam, who self-identifies as black African-American, alleges two separate
incidents of race discrimination: (i) the Giusti incident, in which Pulliam was issued
a “Letter of Counseling” after supervisor Patricia Giusti reported that Pulliam could
not be found in her assigned work area, and (ii) the Hill incident, in which supervisor
LaToyia Hill terminated Pulliam following complaints that Pulliam engaged in a
confrontation with two United passengers and that Pulliam habitually left work early.
Pulliam argues that the district court erred in its analysis under the McDonnell
Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).2
With respect to the Giusti incident, Pulliam failed to proffer evidence of three
of the four prima facie elements of a discrimination claim: (i) that she was performing
1
United filed a motion to strike portions of Pulliam’s reply brief and
“Further Excerpts of Record Volume III” attached to the reply brief, arguing that
the material was never before the district court. We grant the motion but note that
consideration of these materials would not change the result reached.
2
Because the Nevada antidiscrimination statute is substantively identical to
federal antidiscrimination law, the same analysis applies to both. See Apeceche v.
White Pine Cnty., 615 P.2d 975, 977 (Nev. 1980).
2
according to United’s legitimate expectations, given that the record reflects that Giusti
could not find Pulliam in her scheduled work area; (ii) that similarly situated
employees outside of her protected class were treated more favorably than Pulliam;
and (iii) that the Letter of Counseling constituted an adverse employment action. See
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (enumerating
elements of a prima facie discrimination claim).
With respect to the Hill incident, even assuming that Pulliam established a
prima facie case of discrimination, United proffered evidence of a legitimate,
nondiscriminatory reason for terminating Pulliam. See Vasquez v. Cnty. of L. A., 349
F.3d 634, 640 (9th Cir. 2003) (“If the plaintiff succeeds in [making a prima facie
case], then the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its allegedly discriminatory conduct.”). Pulliam’s
confrontation with two United passengers is a legitimate, nondiscriminatory reason
for termination under United’s policies regardless of whether Pulliam called the
passenger a “smart ass” as United contends, or whether Pulliam told the passenger
“don’t get smart asking me questions” as she contends. Pulliam proffered no evidence
that this reason was pretextual, aside from generally alleging that it is “false and not
credible.” See id. (“If the defendant provides [a legitimate, nondiscriminatory] reason,
3
the burden shifts back to the plaintiff to show that the employer’s reason is a pretext
for discrimination.”).
Pulliam’s retaliation claim is based on a race discrimination complaint she made
against Giusti to United’s Business Conduct Line following the Giusti incident. Even
assuming that Pulliam has made a prima facie case of retaliation through the inference
of a sufficient temporal connection between the protected activity and her termination,
her retaliation claim fails for the same reason as her discrimination claims—United
has offered evidence of a separate legitimate, nonretaliatory reason for terminating
Pulliam. Pulliam has not offered specific evidence this reason is pretextual beyond
general assertions that United’s proffered reason is “fishy.” See Davis v. Team Elec.
Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008) (explaining the application of the
McDonnell Douglas burden-shifting framework to retaliation claims).
We need not reach Pulliam’s final argument—that the district court erred in
considering Hill’s sworn declaration—because even if the declaration were excluded,
summary judgment would be warranted. The only statement in the declaration not
directly supported by other record evidence is Hill’s assertion that she was unaware
of Pulliam’s complaint against Guisti at the time of the termination decision. Yet, as
explained above, the retaliation claim fails because of United’s legitimate,
nonpretextual reason for Pulliam’s termination.
4
AFFIRMED.
5