FILED
NOT FOR PUBLICATION MAR 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELEANOR REED, No. 11-15105
Plaintiff - Appellant, D.C. No. 4:09-cv-01480-CW
v.
MEMORANDUM *
AVIS BUDGET GROUP, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted March 16, 2012 **
San Francisco, California
Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.
Eleanor Reed, a former employee of Avis Budget Group, claims that Avis
retaliated against her by failing to rehire her pursuant to a Collective Bargaining
*
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).
Agreement (CBA) because she complained about race and disability discrimination
and filed a successful claim with the California Department of Fair Employment
and Housing (DFEH) for the alleged discrimination. The district court granted
summary judgment in favor of Avis. The facts Reed alleges are familiar to both
parties. We “review[] a district court’s grant of summary judgment de novo [and]
determine, viewing the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact.” Dawson v. Entek
Int’l, 630 F.3d 928, 934 (9th Cir. 2011).
Reed’s retaliation claim for the filing of the DFEH complaint fails because
there was no evidence that managers Spain and Stephens, who made the decision
not to rehire Reed, knew of the filing of the DFEH complaint. Human Resources
Manager Height, who did know about the complaint, was not a decisionmaker. See
Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (“Essential to a
causal link is evidence that the employer was aware that the plaintiff had engaged
in the protected activity”). Although Reed insinuates that there is a triable issue of
fact as to whether Height had influence on the decision not to rehire Reed, she only
points to a single email, which was written after the decision had been made. There
is no evidence that Height influenced the decision.
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Reed also fails to make a prima facie case of retaliation for her complaints of
discrimination due to lack of temporal proximity between the failure to hire and the
protected conduct. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(noting the importance of temporal proximity). Reed relies on Porter v. Cal. Dept.
of Corrections, 419 F.3d 885 (9th Cir. 2005). Unlike in Porter, there is no evidence
that the decisionmakers harbored a grudge; in fact, after Reed was sent a notice
informing her of her right to be rehired under the CBA, Spain followed up by
calling Reed to discuss her rehiring.
Even if Reed made a prima facie case, Avis provides a legitimate non-
discriminatory reason for its action. Avis did not accept Reed’s late acceptance of
the offer of rehiring because it did not want to create precedent for other
employees, and because to do so would have been unfair to other workers. Reed
offers no evidence to suggest that this reason is pretextual. See Dawson, 630 F.3d
at 936 (discussing burden shifting mechanism).
AFFIRMED.
3