Yesenia Guitron v. Wells Fargo Bank

FILED
NOT FOR PUBLICATION JUL 27 2015

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

FOR THE NINTH CIRCUIT

YESENIA GUITRON, No. 13-16023

Plaintiff - Appellant, D.C. No. 4:10-cv-03461-CW

v.
MEMORANDUM*
WELLS FARGO BANK, NA; WELLS
FARGO & COMPANY; PAM RUBIO,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Senior District Judge, Presiding

Submitted July 7, 2015**
San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

Yesenia Guitron appeals the district court’s summary judgment order in

favor of defendant, Wells Fargo Bank, dismissing her whistleblower action

brought under § 806 of the Sarbanes–Oxley Act of 2002 (“SOX”), 18 U.S.C. §

*
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).
1514A. Guitron also seeks review of the clerk’s bill of costs for $42,059.24. We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment de novo, and taxation of costs for abuse of discretion. Tides v.

Boeing Co., 644 F.3d 809, 813 (9th Cir. 2011); Ass’n of Mexican–American

Educators v. California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc). We

affirm the summary judgment order and vacate and remand the bill of costs.

SOX whistleblower claims are governed by “a burden-shifting procedure

[under] which a plaintiff is first required to make out a prima facie case of

retaliatory discrimination.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 996

(9th Cir. 2009). “[I]f the plaintiff meets this burden, the employer [then] assumes

the burden of demonstrating by clear and convincing evidence that it would have

taken the same adverse employment action in the absence of the plaintiff’s

protected activity.” Id. Because we find Wells Fargo met its burden in showing it

would have taken the same adverse employment action, we need not reach the

question of whether Guitron made out a prima facie case.

2
Wells Fargo presented clear and convincing evidence that Guitron (1) failed

to meet her quarterly sales goals,1 (2) had been insubordinate to her direct manager,

and (3) refused to return to work after Wells Fargo repeatedly informed her that

she had only been placed on administrative leave and not fired. This evidence

demonstrates that, even without Guitron’s protected activity, Wells Fargo would

have issued her verbal and informal warnings, placed her on administrative leave,

and terminated her, respectively. See Halloum v. Intel Corp., 24-IER-50, 2006 WL

618383, Final Decision and Order (Dep’t of Labor SAROX Jan. 31, 2006), aff’d,

307 F. App’x 106, 107 (9th Cir. 2009); Kim v. Boeing Co., No. C10-1850-RSM,

2011 WL 4437086 (W.D. WA. Sept. 23, 2011), aff’d, 487 F. App’x 356, 357–58

(9th Cir. 2012). Guitron has failed to create a genuine issue of material fact with

respect to the facts surrounding her warnings, administrative leave, and subsequent

termination. Therefore, we affirm the district court’s summary dismissal of

Guitron’s SOX claim.

We vacate and remand the bill of costs with instructions to reduce the

amount awarded to $18,675.70. Guitron sufficiently objected under the Northern

1
Because Guitron admitted she did not meet her 2009 sales goals during her
deposition, we agree with the district court’s factual finding that Guitron failed to
introduce evidence that Wells Fargo inconsistently implemented its personnel
policies, or that others who performed similarly were not given such warnings.
3
District of California Local Rule 54-2 to preserve the bill of costs issue on appeal.

See Fed. R. Civ. P. 54(d)(2)(D); N.D. Cal. Civ. R. 54-2, 54-4(b); cf. Walker v.

California, 200 F.3d 624, 625–26 (9th Cir. 1999). And even assuming Guitron

waived this issue when she did not to renew her objection by moving for review of

the clerk’s action under Federal Rule of Civil Procedure 54(d)(1), the equitable

factors in this case favor amending the bill of costs. See In re Hanover Nuclear

Reservation Litig., 534 F.3d 986, 1007–08 (9th Cir. 2007) (“We have discretion,

however, to overlook any waiver.”); Ass’n of Mexican–American Educators, 231

F.3d at 592.2

Generally, “a party may demand judicial review of a cost award only if such

party filed a proper motion within the [seven]-day period specified in [Federal

Rule of Civil Procedure] 54(d)(1).” Walker, 200 F.3d at 626. Although Walker

requires a Rule 54(d)(1) motion to prevent waiver on appeal, we find Walker

distinguishable because the losing plaintiff there never objected to the clerk or the

district judge until filing an appeal. Id. at 625. Here, Guitron objected to Wells

2
We have previously considered the following factors in denying an award
of costs: (1) the losing party’s limited financial resources; (2) misconduct on the
part of the prevailing party; (3) the chilling effect of imposing high costs on future
civil rights litigants; (4) the public importance of the issues in the case; (5) the
closeness and difficulty of the issues in the case; and (6) the merit of the plaintiff’s
case. See Ass’n of Mexican–American Educators, 231 F.3d at 592.
4
Fargo’s requested bill of costs under Northern District of California Local Rule 54-

2 by filing a ten-page objection, her declaration, and a declaration by her attorney

averring to the “meet and confer” requirement of Local Rule 54-2(b). Considering

Guitron’s averment that she is a single mother of two children with limited

financial resources; the significant difference between Wells Fargo’s resources and

Guitron’s ability to pay; the chilling effect that taxing a SOX plaintiff over $42,000

could have on future SOX plaintiffs initiating meritorious claims; and that Guitron

brought her claim in good faith, we vacate the clerk’s taxation order and direct the

district court to reduce the costs award to a total of $18,675.70.

AFFIRMED in part, VACATED and REMANDED in part with

instructions that the district court amend its bill of costs to $18,675.70. The parties

shall bear their own costs on appeal.