NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HEIDI HAMILTON, No. 08-17353
Plaintiff - Appellant, D.C. No. 2:06-cv-00235-RCJ-LRL
v.
MEMORANDUM *
SEARS ROEBUCK AND COMPANY,
DBA The Great Indoors,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Argued and Submitted November 4, 2009
San Francisco, California
Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, ** District
Judge.
Heidi Hamilton (“Hamilton”) appeals the adverse summary judgment grant for
both her Title VII sex discrimination and retaliatory termination claims against The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
Great Indoors (“TGI”), a division of Sears, Roebuck and Co., arguing genuine issues
of material fact as to whether she established a prima facie case. She also appeals the
district court’s order on her ERISA claim, in which the court found for her but
declined to issue statutory penalties or her counsel’s costs and fees.
A. Gender Discrimination
We review de novo a grant of summary judgment and apply the same standard
used by the district court. Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th
Cir. 1995). “The court must not weigh the evidence or determine the truth of the
matters asserted but only determine whether there is a genuine issue for trial.”
Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994).
Hamilton has failed to establish a material issue of fact as to discrimination.
She has not alleged any statements or actions “prov[ing] the fact of discriminatory
animus without inference or presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d
1090, 1095 (9th Cir. 2005) (internal quotations, citations, and alterations omitted).
She has not raised indirect evidence “showing that the employer’s proffered
explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise
not believable.” Fonseca v. Sysco Food Serv. of Ariz., Inc., 374 F.3d 840, 849 (9th
Cir. 2004) (quoting Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002)).
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Hamilton’s own claims and her former colleague, Irma Hill’s, statements allege
a different standard for Hamilton and other managers, and Hamilton infers her gender
explains this variance. However, TGI demonstrated legitimate, nondiscriminatory
reasons for Hamilton’s termination – a consistent pattern of poor management and
performance reviews dating back to within weeks of her hiring.
Nor can Hamilton show TGI’s response “unworthy of credence” when she
received negative performance appraisals within weeks of beginning her job. Her
statements reflect Davidson’s impression of her performance. Neither of the other
two female managers under Davidson’s supervision received reduced bonuses (one
was promoted), and Hamilton cannot point to male managers rewarded for
substandard performance, conceding “they were doing a good job.”
B. COBRA Damages
An ERISA plan administrator “may in the court’s discretion be personally liable
to . . . [a] participant or beneficiary in the amount of up to” $110 per day running from
the date of a “failure or refusal” to notify a recipient of her COBRA benefits, “and the
court may in its discretion order such other relief as it deems proper.” 29 U.S.C. §
1132(c)(1)(A); 29 C.F.R. § 2575.502c-1.
The district court did not abuse its discretion. The court’s order left open the
possibility Hamilton could have recovered had she been able to show her actual
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damages. This comports with § 1132(c)(1)(A)’s primary purpose, to compensate
victims for damages due to lack of notification, see Stone v. Travelers Corp., 58 F.3d
434, 438-39 (9th Cir. 1995), and Hamilton does not allege any benefit to TGI, thus
removing the need for a recovery for a deterrence purpose.
C. Attorneys’ Fees and Costs
Under ERISA, “reasonable attorney’s fee and costs” are awardable “in the
court’s discretion” to either party. 29 U.S.C. § 1132(g). The denial of attorneys’ fees
is reviewed for an abuse of discretion. See Honolulu Joint Apprenticeship & Training
Comm. v. Foster, 332 F.3d 1234, 1240 (9th Cir. 2003) [Honolulu]. In Hummell v. S.E.
Rykoff & Co., 634 F.2d 446 (9th Cir.1980), we explained the five factors guiding
district courts in the decision to award or deny fees, see Honolulu, 332 F.3d at 1240,
and a decision denying fees will be set aside if the district court “failed to state the
reasons for its decision.” Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th
Cir. 1984) (citations omitted).
The district court failed to consider the Hummell factors, stating only it “denies
fees and costs,” without providing any analysis. Because such consideration did not
occur, and “a prevailing participant or beneficiary ‘should ordinarily recover an
attorney’s fee unless special circumstances would render such an award unjust,’”
Honolulu, 332 F.3d at 1239 (quoting Smith, 746 F.2d at 589), we vacate and remand
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on this issue for the district court to consider the Hummell factors in determining fees
and costs on the COBRA claim. On all other issues we affirm.
AFFIRMED in Part; VACATED and REMANDED in Part. Each party to
bear its own costs on appeal.
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