NOT FOR PUBLICATION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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