Naomi Heneage v. Dte Energy

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 18 2015

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

NAOMI HENEAGE, No. 13-15345

Plaintiff - Appellant, D.C. No. 3:11-cv-0686-LRH-
WGC
v. (Nevada, Las Vegas)

DTE ENERGY and NEVADA ENERGY
INVESTMENTS, LLC, MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Argued and Submitted April 15, 2015
San Francisco, California

Before: KOZINSKI and GRABER, Circuit Judges, and BENSON**, District Judge.

Heneage appeals the district court’s dismissal of her Title VII and FMLA

claims against DTE Energy (“DTE”) and her Title VII claims against Nevada

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dee V. Benson, District Judge for the District of Utah,
sitting by designation.
Energy Investments, LLC (“NEI”). Heneage failed to oppose DTE’s Motion for

Judgment on the Pleadings with respect to her FMLA claim. Her request for relief

on the FMLA claim is therefore waived. See Ghazali v. Moran, 46 F.3d 52, 52-53

(9th Cir. 1995) (per curiam).

Taking the alleged facts as true, and drawing reasonable inferences in favor

of the plaintiff, the question is whether the complaint plausibly states a claim for

relief. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

1. Heneage is a woman who alleges she was rejected for a position with NEI

because she engaged in protected activity. She alleges that none of the women

(three, including Heneage) on the industrial side of the plant were hired, whereas

many men were hired. NEI also allegedly gave a variety of changing explanations

for its decision not to hire Heneage, at least one of which was untrue. Gender

discrimination by NEI is a permissible inference.

Heneage also alleges that she and three other employees on the industrial

side of the plant had engaged in protected activity while working at DTE; that none

were hired by NEI, whereas many other such employees were hired; and that

communication between DTE and NEI occurred before NEI made its hiring

decisions. Retaliation by NEI is a permissible inference.

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 2. Heneage alleges that NEI told her that a “group” had made the decision

not to hire her, and she is informed and believes that the “group” consisted of

management at both NEI and DTE. She further alleges that the decision makers

for DTE and NEI had offices next door to each other, and is informed and believes

that the DTE manager influenced the NEI manager in the selection process. The

alleged fact that those who engaged in protected activity on the industrial side at

DTE were not hired by NEI permits a reasonable inference that DTE informed NEI

that they had engaged in such activity. Retaliation by DTE is a permissible

inference.

3. The facts alleged do not support a plausible claim of sex discrimination

against DTE.

In summary, we reverse the district court’s dismissal of the retaliation claim

against NEI and DTE and the sex discrimination claim against NEI. We affirm in

all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED. Heneage

is awarded costs against DTE and NEI on appeal.

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