FILED
NOT FOR PUBLICATION
MAR 01 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHA PEREZ, No. 15-15005
Plaintiff-Appellant, D.C. No. 4:10-cv-04181-JSW
v.
MEMORANDUM*
ALAMEDA COUNTY SHERIFFS’
OFFICE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted December 16, 2016
San Francisco, California
Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.
Asha Perez (“Perez”) appeals the district court’s grant of summary judgment
to the Alameda County Sheriff’s Office (“ACSO”) on her gender discrimination
claim. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
As an ACSO Deputy Sheriff, Perez was subject to an internal investigation
based on allegations that she had failed to submit citations, reports, and attachments,
falsified patrol logs, and failed to process evidence and property properly. The
investigation confirmed these charges and also led to the finding that Perez was
dishonest with investigators. As a result, Perez received a temporary pay reduction
that was upheld on administrative review. Perez subsequently brought eleven causes
of action against ACSO and several supervisors who were in her chain of command
at ACSO. A prior panel of this court upheld the district court’s grant of summary
judgment to ACSO, with the exception of Perez’s gender discrimination claim which
it remanded for further proceedings.
The Supreme Court’s McDonnell Douglas burden-shifting test applies to
discrimination claims on motion for summary judgment. See Guz v. Bechtel Nat’l,
Inc., 8 P.3d 1089, 1113-14 (Cal. 2000) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)). Assuming Perez established a prima facie case of
discrimination, we find ACSO articulated legitimate, nondiscriminatory reasons for
the disciplinary action against Perez–namely, Perez’s “fail[ure] to perform her duties
. . . in a satisfactory manner.” See Trop v. Sony Pictures Entm’t Inc., 129 Cal. App.
4th 1133, 1149 (2005).
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Perez, however, then failed to carry her burden of proving that ACSO’s cited
reasons for the discipline were pretext for gender discrimination. Guz, 8 P.3d at 1114.
Where, as here, a plaintiff relies on circumstantial evidence of discriminatory motive,
such evidence must be “specific and substantial.” Goodwin v. Hunt Wesson, Inc., 150
F.3d 1217, 1222 (9th Cir. 1998) (internal quotation marks omitted). Perez presented
several types of circumstantial evidence of discriminatory motive, all of which fail to
establish pretext.
1. The district court did not err in finding that Perez failed to offer evidence of
gender discrimination against similarly situated employees sufficient to establish
pretext, because neither of the two female ACSO employees whom Perez
identifies–Deputy Divine and Pamela Landry–was accused of the same degree of
misconduct as Perez, subjected to the same degree of disciplinary action as Perez, or
disciplined by the same ACSO officials who disciplined Perez. See Johnson v. United
Cerebral Palsy, 173 Cal. App. 4th 740, 767 (2009). Divine’s and Landry’s
testimonies do not raise an inference of discriminatory intent, because they are not
“sufficiently similar to the [situation] presented by [Perez] concerning her own
[discipline].” Id.
2. ACSO’s alleged violation of its complaint policy does not establish pretext,
because Perez has not presented evidence of a clear “logical nexus between” ACSO’s
3
decision to discipline her and its alleged failure to investigate and report
discrimination complaints up the chain of command. See Morgan v. Regents of Univ.,
88 Cal. App. 4th 52, 77 (2000).
3. The district court did not err in concluding that Perez failed to present
evidence of disparate treatment of similarly situated male employees sufficient to
establish pretext. There is no suggestion that the two male ACSO employees whom
Perez identifies “engaged in the same [mis]conduct” as Perez. Wills v. Superior
Court, 195 Cal. App. 4th 143, 172 (2011) (internal quotation marks and citation
omitted). Moreover, ACSO’s comparable disciplinary action against Sergeant
Farruggia further undermines Perez’s claim that similarly situated male employees
received better treatment.
4. Perez has not presented evidence that ACSO’s criticism of her
documentation practices was unfounded, and therefore her performance-based
argument cannot establish that ACSO’s reasons for the disciplinary action were
pretextual. See Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 807
(1999).
5. The alleged “derogatory remarks” by ACSO employees Stephen Wolf and
Dean Stavert are insufficient to establish discriminatory motive, because the
4
comments were unrelated to the disciplinary action against Perez. See Harris v. City
of Santa Monica, 294 P.3d 49, 61, 66 (Cal. 2013).
In short, because Perez failed to establish an issue of material fact as to ACSO’s
reasons for disciplining her, the district court did not err in granting ACSO summary
judgment on Perez’s gender discrimination claim.
Furthermore, the district court did not abuse its discretion by refusing to permit
additional discovery, as Perez apparently failed to comply with both Federal Rule of
Civil Procedure 56(d) and the district court’s instructions for requesting additional
discovery. Nor did the district court err in refusing to remand Perez’s gender
discrimination claim to state court. Because the gender discrimination claim formed
part of the same case or controversy as Perez’s prior federal claims, and had been
before the district court for four years, the district court’s decision to continue to
exercise jurisdiction over the discrimination claim was reasonable. See Foster v.
Wilson, 504 F.3d 1046, 1051-52 (9th Cir. 2007) (“The decision whether to continue
to exercise supplementary jurisdiction over state law claims after all federal claims
have been dismissed lies within the district court’s discretion.”).
AFFIRMED.
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FILED
Perez v. Alameda County Sheriffs’ Office, 15-15005
MAR 01 2017
BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. I would hold that summary judgment should not have
been granted. Perez presented sufficient evidence that the neutral reasons given to
explain her discipline were pretextual to permit a jury to infer that she was
disciplined, at least in part, because she is a woman.
First, as the majority disposition acknowledges, there was evidence that the
Alameda County Sheriff’s Office did not follow its established antidiscrimination
policies in considering complaints of gender-based discriminatory treatment. Those
lapses were attributable to the same supervisors involved in Perez’s adverse
employment decision, related to complaints of discrimination in the meting out of
discipline, were repeated and so demonstrated a “consistent pattern of behavior”
over a period of time, and were close in time to the investigation. See Lam v. Univ.
of Hawai‘i, 40 F.3d 1551, 1563 (9th Cir. 1994). Additionally, these failures to
report complaints of discrimination according to policy were sometimes
accompanied by gender-based comments discounting the complaints.1 These
1
Despite a long record of reports to supervisors about feeling as though she
was being treated differently with respect to job standards and discipline, Perez’s
complaints were not reported up the chain of command. When Perez complained to
higher-ups, her complaints were met with excuses and questions about whether she
was being “overly sensitive” or “PMSing,” and she was called a “whiner” behind
her back.
When Perez and another female employee specifically contested the
(continued...)
factors suffice to provide some evidence of a discriminatory motive, and so help
establish that the reasons enunciated were pretextual. See Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1221 (9th Cir. 1998); Morgan v. Regents of Univ., 88 Cal.
App. 4th 52, 77 (2000).
Second, the “me too” evidence provided by other women employees was
also of sufficient significance to support a pretext finding. That the precise
circumstances encountered by those women differed from those Perez endured
does not negate the inference of discriminatory animus arising from their
treatment. Johnson v. United Cerebral Palsy, 173 Cal. App. 4th 740, 767 (2009),
relied upon by the majority to support its conclusion to the contrary, held that
“[d]issimilarities between the facts related in the other employees’ declarations and
the facts asserted by plaintiff with regard to her own case go to the weight of the
evidence, not its admissibility.” On summary judgment, district judges are not fact-
finders and should not be weighing the evidence.
Third, Perez presented evidence that she was disciplined in part—although
not entirely—for conduct that men also engaged in but were not disciplined for.
For example, there was evidence that two male employees were not disciplined but
1
(...continued)
imposition of formal discipline by bringing binders of evidence to higher-level
supervisors, those supervisors refused to look at the evidence. Instead, the alleged
disparate discipline continued.
2
instead instructed to locate their own “missing paperwork,” and that even that level
of supervisory attention arose only after Perez was disciplined for the same
omission. That Sergeant Farruggia was punished does not negate a permissible
inference from the failure to discipline men for similar infractions. Farruggia was a
sergeant with responsibility to review reports and logs for accuracy and
completeness, so his infractions could be considered more serious than Perez’s.
Finally, the gender-based “derogatory comments” by male supervisors do
support a finding of discriminatory motive. Harris v. City of Santa Monica, 294
P.3d 49, 61, 65 (Cal. 2013), held that stray remarks are not enough on their own to
prove “that improper bias was in fact a motivating factor behind a particular
employment decision.” But the California Supreme Court made clear in Reid v.
Google, Inc., 235 P.3d 988 (Cal. 2010), that “when combined with other evidence
of pretext, an otherwise stray remark may create an ‘ensemble [that] is sufficient to
defeat summary judgment.’” Id. at 1008 (quoting Shager v. Upjohn Co., 913 F.2d
398, 403 (7th Cir. 1990)).
In sum, “a trial court must review and base its summary judgment
determination on the totality of evidence in the record, including any relevant
discriminatory remarks.” Reid, 235 P.3d at 1008. The question is not, as the
majority supposes, whether a single piece or type of evidence “create[s] only a
weak issue of fact,” id., but rather whether all the direct and circumstantial
3
evidence of pretext, “when taken together, . . . constitute[s] sufficient evidence to
demonstrate a triable issue of fact,” even if each alone would be insufficient.
Johnson, 173 Cal. App. 4th at 758.
Here, the evidence sufficiently supports an inference of discriminatory
motive in the actions taken against Perez. Although each type of evidence, alone,
may well be too weak to raise a question of material of fact, the various types of
evidence discounted by the majority, together, are strong enough that the grant of
summary judgment was improper.
I would reverse the grant of summary judgment and remand for trial.
4