FILED
NOT FOR PUBLICATION JUL 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARIE COLE, No. 13-15952
Plaintiff - Appellant, D.C. No. 5:11-cv-05378-PSG
v.
MEMORANDUM*
THE PERMANENTE MEDICAL
GROUP, INC., a California corporation,
Defendant - Appellee,
And
KAISER PERMANENTE MEDICAL
GROUP, INC., a California corporation,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 11, 2015**
San Francisco, California
Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN,*** Senior
District Judge.
Rosemarie Cole appeals the district court’s order granting summary
judgment in favor of The Permanente Medical Group on Cole’s claim that
Permanente terminated her employment in violation of § 510 of the Employee
Retirement Income Security Act (ERISA). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
ERISA § 510 provides that “[i]t shall be unlawful for any person to
discharge . . . a participant [in an employee benefit plan]. . . for the purpose of
interfering with the attainment of any right to which such participant may become
entitled under the plan.” 29 U.S.C. § 1140. The district court concluded that Cole
established a prima facie case of discrimination under § 510 because she was
discharged 18 months before she would have been entitled to additional benefits
under her pension plan. Even if she established a prima facie case, Cole’s claim
fails because Permanente articulated a legitimate, nondiscriminatory reason for
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
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terminating Cole. See Ritter v. Hughes Aircraft Co., 58 F.3d 454, 456–57 (9th Cir.
1995) (applying burden shifting analysis applicable to Title VII and ADEA claims
to claim brought under § 510 of ERISA). Cole was terminated because she
knowingly violated Permanente’s confidentiality policy by accessing her
then-husband’s medical records 12 times and another person’s records more than
once. Cole did not present any evidence that showed Permanente’s articulated
motive for terminating her was pretext for a discriminatory motive. See id. Cole
did not present evidence that the person who made the decision to terminate her
employment was aware that the termination would reduce Cole’s pension benefits
or disqualify Cole from any benefits.
AFFIRMED.
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