Yesenia Guitron v. Wells Fargo Bank , 619 F. App'x 590 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YESENIA GUITRON, No. 13-16023
Plaintiff - Appellant, D.C. No. 4:10-cv-03461-CW
v.
MEMORANDUM*
WELLS FARGO BANK, NA; WELLS
FARGO & COMPANY; PAM RUBIO,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Senior District Judge, Presiding
Submitted July 7, 2015**
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
Yesenia Guitron appeals the district court’s summary judgment order in
favor of defendant, Wells Fargo Bank, dismissing her whistleblower action
brought under § 806 of the Sarbanes–Oxley Act of 2002 (“SOX”), 18 U.S.C. §
*
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).
1514A. Guitron also seeks review of the clerk’s bill of costs for $42,059.24. We
have jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of
summary judgment de novo, and taxation of costs for abuse of discretion. Tides v.
Boeing Co., 644 F.3d 809, 813 (9th Cir. 2011); Ass’n of Mexican–American
Educators v. California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc). We
affirm the summary judgment order and vacate and remand the bill of costs.
SOX whistleblower claims are governed by “a burden-shifting procedure
[under] which a plaintiff is first required to make out a prima facie case of
retaliatory discrimination.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 996
(9th Cir. 2009). “[I]f the plaintiff meets this burden, the employer [then] assumes
the burden of demonstrating by clear and convincing evidence that it would have
taken the same adverse employment action in the absence of the plaintiff’s
protected activity.” Id. Because we find Wells Fargo met its burden in showing it
would have taken the same adverse employment action, we need not reach the
question of whether Guitron made out a prima facie case.
2
Wells Fargo presented clear and convincing evidence that Guitron (1) failed
to meet her quarterly sales goals,1 (2) had been insubordinate to her direct manager,
and (3) refused to return to work after Wells Fargo repeatedly informed her that
she had only been placed on administrative leave and not fired. This evidence
demonstrates that, even without Guitron’s protected activity, Wells Fargo would
have issued her verbal and informal warnings, placed her on administrative leave,
and terminated her, respectively. See Halloum v. Intel Corp., 24-IER-50, 2006 WL
618383, Final Decision and Order (Dep’t of Labor SAROX Jan. 31, 2006), aff’d,
307 F. App’x 106, 107 (9th Cir. 2009); Kim v. Boeing Co., No. C10-1850-RSM,
2011 WL 4437086 (W.D. WA. Sept. 23, 2011), aff’d, 487 F. App’x 356, 357–58
(9th Cir. 2012). Guitron has failed to create a genuine issue of material fact with
respect to the facts surrounding her warnings, administrative leave, and subsequent
termination. Therefore, we affirm the district court’s summary dismissal of
Guitron’s SOX claim.
We vacate and remand the bill of costs with instructions to reduce the
amount awarded to $18,675.70. Guitron sufficiently objected under the Northern
1
Because Guitron admitted she did not meet her 2009 sales goals during her
deposition, we agree with the district court’s factual finding that Guitron failed to
introduce evidence that Wells Fargo inconsistently implemented its personnel
policies, or that others who performed similarly were not given such warnings.
3
District of California Local Rule 54-2 to preserve the bill of costs issue on appeal.
See Fed. R. Civ. P. 54(d)(2)(D); N.D. Cal. Civ. R. 54-2, 54-4(b); cf. Walker v.
California, 200 F.3d 624, 625–26 (9th Cir. 1999). And even assuming Guitron
waived this issue when she did not to renew her objection by moving for review of
the clerk’s action under Federal Rule of Civil Procedure 54(d)(1), the equitable
factors in this case favor amending the bill of costs. See In re Hanover Nuclear
Reservation Litig., 534 F.3d 986, 1007–08 (9th Cir. 2007) (“We have discretion,
however, to overlook any waiver.”); Ass’n of Mexican–American Educators, 231
F.3d at 592.2
Generally, “a party may demand judicial review of a cost award only if such
party filed a proper motion within the [seven]-day period specified in [Federal
Rule of Civil Procedure] 54(d)(1).” Walker, 200 F.3d at 626. Although Walker
requires a Rule 54(d)(1) motion to prevent waiver on appeal, we find Walker
distinguishable because the losing plaintiff there never objected to the clerk or the
district judge until filing an appeal. Id. at 625. Here, Guitron objected to Wells
2
We have previously considered the following factors in denying an award
of costs: (1) the losing party’s limited financial resources; (2) misconduct on the
part of the prevailing party; (3) the chilling effect of imposing high costs on future
civil rights litigants; (4) the public importance of the issues in the case; (5) the
closeness and difficulty of the issues in the case; and (6) the merit of the plaintiff’s
case. See Ass’n of Mexican–American Educators, 231 F.3d at 592.
4
Fargo’s requested bill of costs under Northern District of California Local Rule 54-
2 by filing a ten-page objection, her declaration, and a declaration by her attorney
averring to the “meet and confer” requirement of Local Rule 54-2(b). Considering
Guitron’s averment that she is a single mother of two children with limited
financial resources; the significant difference between Wells Fargo’s resources and
Guitron’s ability to pay; the chilling effect that taxing a SOX plaintiff over $42,000
could have on future SOX plaintiffs initiating meritorious claims; and that Guitron
brought her claim in good faith, we vacate the clerk’s taxation order and direct the
district court to reduce the costs award to a total of $18,675.70.
AFFIRMED in part, VACATED and REMANDED in part with
instructions that the district court amend its bill of costs to $18,675.70. The parties
shall bear their own costs on appeal.
5