Kathleen Huggins v. Walbro, LLC ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN HUGGINS, No. 18-16022
Plaintiff-Appellant, D.C. No. 4:16-cv-00590-DCB
v.
MEMORANDUM*
WALBRO, LLC, a foreign LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted December 2, 2019
San Francisco, California
Before: LUCERO,** CALLAHAN, and BADE, Circuit Judges.
Kathleen Huggins contends that Walbro, LLC unlawfully denied her a
promotion based on her age and sex. The district court granted summary judgment
in Walbro’s favor, and Huggins appeals. We review de novo, Shelley v. Geren,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
666 F.3d 599, 604 (9th Cir. 2012), and affirm.1
We evaluate Huggins’s claims under the framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which first requires Huggins to
establish a prima facie case of age and sex discrimination. Shelley, 666 F.3d at
608. If she succeeds, the burden shifts to Walbro “to articulate a legitimate non-
discriminatory reason” for not promoting her. Id. Huggins then must show that
there is a genuine issue of material fact as to whether Walbro’s purported rationale
is merely pretext for discrimination. Id.
Without deciding whether Huggins states a prima facie case of
discrimination, we conclude that she fails to raise a triable issue of fact as to
whether Walbro’s proffered explanation for not promoting her was pretextual.
Walbro asserts that it did not promote her because she never applied for the
position and was unqualified in any event. To prevail, Huggins must offer
“specific and substantial” evidence of pretext. Coghlan v. Am. Seafoods Co., 413
F.3d 1090, 1095 (9th Cir. 2005) (citation omitted). In addition, because Walbro’s
CEO earlier promoted Huggins and, months later, denied her the promotion at
issue here, Walbro is entitled to the “same-actor” inference.2 Id. at 1096-98. A
1
Because the parties are familiar with the facts of this case, we do not
discuss them at length here.
2
Huggins contends that the inference applies neither at summary
judgment nor in cases not involving the hiring and firing of an employee. She is
2
case survives summary judgment in the face of the inference “only . . . if a plaintiff
can muster the extraordinarily strong showing of discrimination necessary to defeat
[it].” Id. at 1097.
Huggins’s evidence falls short of this burden. Walbro sought candidates
with experience influencing Japanese corporate boards. Huggins acknowledges
that this qualification was of “paramount importance” to Walbro, yet she fails to
show that she possesses the requisite experience. She points out that she spent a
year at a Japanese-owned company in the nineties and twelve years in Japan
leading a church congregation. But even assuming that these positions qualify her
for the promotion, she did not include them on her resume. She therefore cannot
fault Walbro for not considering the entirety of her experience. See Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (providing that it is the
employer’s subjective belief that matters, not whether the proffered reasons are
objectively false).
Huggins further contends that Walbro shifted its stance over the course of
this dispute. Admittedly, Walbro’s argument that Huggins never applied
contradicts the position statement that the company filed with the Arizona Attorney
mistaken; courts “must” consider the inference at summary judgment, Coghlan,
413 F.3d at 1098, and it “applies to favorable employment actions other than
hiring, such as promotion,” Schechner v. KPIX-TV, 686 F.3d 1018, 1026 (9th Cir.
2012) (citation omitted).
3
General. Yet this change in position fails to discredit Walbro’s consistent
explanation that it found Huggins unqualified. See Odima v. Westin Tucson Hotel
Co., 991 F.2d 595, 600 (9th Cir. 1993) (“Where . . . an employer articulates several
alternative and independent legitimate nondiscriminatory reasons, the falsity of one
does not necessarily justify the finding that the remaining articulated reasons were
pretextual.” (internal quotations and citation omitted)).
Huggins also points to an alleged inconsistency in Walbro’s argument that it
initially reached out to a female to fill the position. She asserts that Walbro’s CEO
stated in his deposition that he contacted a female former colleague not to gauge
her interest in the job, but to ascertain if she knew of any possible candidates.
However, the deposition transcript reveals no such contradiction. The context
makes clear that the CEO was interested in recruiting the woman with whom he
spoke. Accordingly, Huggins fails to present the “strong case of bias” necessary to
overcome the same-actor inference, Coghlan, 413 F.3d at 1098, and the district
court properly granted Walbro’s motion for summary judgment.
AFFIRMED.
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