Cynthia Morris v. Charter Communications, Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA MORRIS, No. 18-55739
Plaintiff-Appellant, D.C. No.
2:17-cv-01725-PSG-AGR
v.
CHARTER COMMUNICATIONS, INC., a MEMORANDUM*
Delaware corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 11, 2019
San Francisco, California
Before: SCHROEDER, FRIEDLAND, and R. NELSON, Circuit Judges.
Cynthia Morris appeals the district court’s grant of summary judgment in
favor of her former employer Time Warner Cable, Inc. (“TWC”) on her claim
under the California Fair Employment and Housing Act (“FEHA”). Morris
contends that TWC violated the FEHA by terminating her in retaliation for her
reporting that her supervisor had made a comment that she and her co-workers
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
perceived as very racially offensive. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo the district court’s grant of summary judgment, Smith v. Clark
Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013), we affirm.
The FEHA’s anti-retaliation provision makes it unlawful “[f]or any
employer . . . to discharge, expel, or otherwise discriminate against any person
because the person has opposed any practices forbidden under this part . . . .” Cal.
Gov’t Code § 12940(h). FEHA retaliation claims are analyzed under the burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973). See Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal.
2005). Under this framework, the employee bears the initial burden of establishing
a prima facie case of retaliation. Id. “Once an employee establishes a prima facie
case, the employer is required to offer a legitimate, nonretaliatory reason for the
adverse employment action.” Id. If the employer does so, the burden shifts back
to the employee to show that the employer’s proffered reason is a pretext for
intentional retaliation. Id.
Assuming without deciding that Morris established a prima facie case of
retaliation, we conclude that her claim fails at the final step of the McDonnell
Douglas analysis. TWC provided a facially legitimate justification for terminating
Morris. An audit, initiated before she first reported her supervisor’s comment,
revealed that Morris had been entering multiple work orders on single transactions,
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which artificially inflated her commissions in violation of company policy. Morris
has not produced “‘specific’ and ‘substantial’” evidence showing that this
justification for termination is “unworthy of credence,” such that a trier of fact
could reasonably conclude TWC’s proffered justification was a pretext for
retaliation. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276,
1284 (9th Cir. 2001) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-
22 (9th Cir. 1998)).
Morris has produced some circumstantial evidence showing that TWC did
not enforce its policy against fraudulent sales practices with perfect consistency.
For example, two of Morris’s co-workers stated that they on occasion submitted
multiple work orders for individual transactions but were never reprimanded for
doing so.
But any inference of pretext drawn from Morris’s evidence is undercut by
the fact that TWC began the audit that uncovered Morris’s manipulation of her
sales records weeks before her supervisor made the offending comment. That
audit focused on Morris not because she had engaged in protected activity under
the FEHA, but rather because her co-workers had reported suspicions about her
sales figures to her immediate supervisor. Indeed, Morris admits that before the
audit, she had already “received a final warning for dishonesty” from TWC for
manipulating customer surveys, which may explain why TWC acted quickly in
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terminating her once it concluded that she had violated company policy again.
Further weakening any inference of retaliatory intent is evidence that TWC has
fired at least ten other employees for manipulating sales records liked Morris did,
none of whom engaged in protected activity, and that TWC did not fire two of
Morris’s co-workers who also reported the same comment made by their
supervisor.
Because Morris did not meet her burden to prove that TWC’s proffered
reason for terminating her was “unworthy of credence” and was in fact pretext for
retaliatory animus, Winarto, 274 F.3d at 1284, the district court correctly granted
summary judgment against her.
AFFIRMED.
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