FILED
NOT FOR PUBLICATION
FEB 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE DODSON, No. 15-55678
Plaintiff-Appellant, D.C. No.
2:14-cv-03733-JFW-AGR
v.
FEDEX CORPORATE SERVICES, INC., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted February 14, 2017**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and HELLERSTEIN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
Lee Dodson appeals from the district court’s summary judgment order in her
employment action against FedEx Corp. alleging age discrimination and retaliation
in violation of the California Fair Employment and Housing Act (“FEHA”). As
the parties are familiar with the facts, we do not recount them here. We affirm.
I. Age Discrimination Claim.
Under the FEHA, a plaintiff can establish an age discrimination claim
through circumstantial evidence when (1) the plaintiff shows a prima facie case of
discrimination; (2) the employer offers a legitimate reason for its actions; and
(3) the plaintiff proves that this reason was pretext to mask an illegal motive.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Guz v. Bechtel
Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000). A prima facie case must show that the
plaintiff (1) was a member of a protected class; (2) was qualified for the position
she sought or was performing competently in the position she held; (3) suffered an
adverse employment action, such as termination, demotion, or denial of an
available job; and (4) there is some other circumstance which suggests
discriminatory motive. Guz, 8 P.3d at 1113.
The amount of evidence required to make out a prima facie case is very low.
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Assuming Dodson
has met the low burden required to establish a prima facie case for age
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discrimination, she has not provided sufficient evidence to show that FedEx’s
legitimate, non-discriminatory reasons for not promoting her were pretext.
A. FedEx’s legitimate, non-discriminatory reason for the adverse
actions.
Once a plaintiff establishes a prima facie case for discrimination, the burden
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the
adverse action. McDonnell Douglas, 411 U.S. at 802. With respect to Dodson’s
claim of discrimination regarding the first adverse action of not being promoted to
the Sales Executive position, FedEx argues that Dodson was not promoted because
she was unqualified. Dodson’s manager, Andy Hahn, did not believe that she had
met the “Role Model and Leadership Initiatives” requirements for a promotion
detailed in FedEx’s “Business Sales & Support Promotional Guidelines for Sales
Executive” document. In addition, Hahn did not believe that Dodson was able to
deal with “the stress and complexities within [FedEx’s] corporate environment”
because on several occasions he had to get involved to help her with strategic
pricing, or a bulk order, or a customer complaint. Hahn also testified that Dodson
was late on updating a “Pipeline Management” report three or four times and that
he had to help her with a simple task of updating an Excel spreadsheet.
With respect to Dodson’s claim of discrimination regarding the second
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adverse action of not being offered a position in California after her office closed,
FedEx argues that Dodson performed poorly in interviews. FedEx argues that in
her panel interviews, Dodson earned scores of 10, 12, and 10 with the possibility of
earning up to 30 points from each panelist. This is a sufficient basis for not
granting her the placement she wanted.
FedEx provided multiple specific examples of Dodson’s areas for
improvement in job performance and subpar interview performance. FedEx thus
articulated a legitimate, non-discriminatory reason for not promoting her to Sales
Executive or offering her a promotional placement in California.
B. Dodson failed to establish pretext.
Once a plaintiff has established a prima facie case for discrimination and the
employer offers legitimate non-discriminatory reasons for the adverse action, the
presumption of discrimination established by the prima facie case “drops out of the
picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The plaintiff
must then demonstrate pretext through direct evidence or circumstantial evidence
showing that the employer’s explanation is internally inconsistent or otherwise not
believable. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000).
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Dodson relies on her own testimony that younger employees were treated
more favorably and promoted over her to establish that FedEx’s explanation for
not promoting her was pretextual. Dodson testified she had “more experience
working with clients and had seniority, so [she] believe[d] her performance was
better.” Dodson incorrectly equates experience and seniority with qualification for
a promotion. There is no evidence in the record as to what these employees’ job
duties were, how they performed, or whether they needed the same extra
supervision as Dodson. See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th
Cir. 2003) (holding that co-workers were not similarly situated because they had
not engaged in the same problematic conduct as plaintiff). Thus, Dodson did not
meet her burden to show that FedEx’s reason for not promoting her to Sales
Executive was pretext.
With respect to the second adverse action Dodson complains of, there is very
little evidence in the record about how the decisions about relocating employees in
the El Segundo office were made. It is Dodson’s burden to show that FedEx’s
proffered explanation for the adverse action “is unworthy of credence because it is
internally inconsistent or otherwise not believable.” Chuang, 225 F.3d at 1127
(citation and internal quotation marks omitted). She failed to meet that burden
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when she did not provide substantial evidence that younger and equally qualified
employees were promoted within California over her.
Accordingly, the district court properly granted summary judgment on
Dodson’s age discrimination claim.
II. Retaliation Claim
Dodson claims that after she filed a charge with California’s Department of
Fair Employment and Housing (“DFEH”), FedEx retaliated against her by not
offering her a position in California after the El Segundo office was dissolved. To
establish a prima facie case of retaliation in violation of the FEHA, a plaintiff must
show that (1) she engaged in a protected activity; (2) she suffered an adverse
action; and (3) there was a causal relationship between the two. See Yanowitz v.
L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005).
Dodson engaged in a protected activity when she filed an administrative
charge with DFEH. Cal. Gov’t Code § 12940(h). Dodson suffered an adverse
action when the El Segundo office closed and all of her colleagues who requested
it were offered new positions in California, while she was only offered a position if
she moved to Phoenix, Pittsburgh, Dallas, or Memphis. But there is not enough
evidence in the record to show that these events were causally connected. Dodson
filed her complaint in March 2014 and the El Segundo office closed in August
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2014. Timing alone cannot support an inference of causality here, especially when
there is no other information available about how those hiring decisions were
made, or whether Dodson’s colleagues were given more favorable placements
because they were more qualified.
Thus, Dodson has failed to make out a prima facie case for retaliation.
Moreover, even if Dodson had established a prima facie case for retaliation, she
has not provided sufficient evidence to show that FedEx’s legitimate, non-
retaliatory reasons for not offering her a promotion in California were pretext.
Accordingly, the district court properly granted summary judgment on Dodson’s
retaliation claim.
AFFIRMED.
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