Diana Baker v. Southwest Energy Solutions

FILED
NOT FOR PUBLICATION JUN 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANA BAKER, No. 12-16667
Plaintiff - Appellant, D.C. No. 4:09-cv-00530-AWT
v.
MEMORANDUM*
SOUTHWEST ENERGY SOLUTIONS,
INC., an Arizona corporation and
TUCSON ELECTRIC POWER
COMPANY, an Arizona corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
A. Wallace Tashima, Senior Circuit Judge, Presiding
Argued and Submitted June 13, 2014
San Francisco, California
Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.
Plaintiff Diana Baker appeals the district court’s grant of summary judgment
for Defendants Southwest Energy Solutions, Inc., and Tucson Electric Power
Company in this employment discrimination case. Reviewing de novo a grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
summary judgment, Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th
Cir. 2011), and for abuse of discretion the district court’s denial of Plaintiff’s
motion for reconsideration, Minn. Mut. Life Ins. Co. v. Ensley, 174 F.3d 977, 987
(9th Cir. 1999), we affirm.
1. The district court did not err in granting summary judgment for
Defendants. Plaintiff pleaded four counts: a sex discrimination claim, a race
discrimination claim, and two retaliation claims. She established a prima facie
case of discrimination and retaliation with respect to the denial of overtime
opportunities. Nilsson v. City of Mesa, 503 F.3d 947, 953–54 (9th Cir. 2007);
Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004).
Defendants, however, proffered a legitimate, non-discriminatory and non-
retaliatory reason for offering overtime opportunities to a co-worker: He was more
qualified for the job. Plaintiff concedes that he performed better when both were
tested on the front-end loader in 2008. Plaintiff’s conclusory statements fail to
create a triable issue of fact as to whether Defendants’ proffered reason is
"unworthy of credence." Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)
(internal quotation marks omitted).
2. Plaintiff failed to establish a prima facie case of discrimination or
retaliation stemming from a denial of equal crane operator time. First, the record
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does not show significant differences between her crane operator time and that of
similarly situated co-workers. Fonseca, 374 F.3d at 850. Second, there is no
evidence that supervisors knew or should have known about alleged
misrepresentations made on timesheets by her co-worker. Bains LLC v. Arco
Prods. Co., 405 F.3d 764, 773–74 (9th Cir. 2005). And we decline to consider
other incidents, such as alleged disciplinary discrepancies, that were not presented
to the district court at summary judgment as adverse employment actions.
Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000). We also note that
Plaintiff remains employed by Defendants.
3. The district court did not abuse its discretion in denying Plaintiff’s
motion for reconsideration. Defendants moved for summary judgment on all four
counts of Plaintiff’s first amended complaint and sought dismissal with prejudice
of that entire complaint. Plaintiff thus was on notice to come forward with any
evidence that might allow her to proceed to trial on any or all of her claims. United
States v. 14.02 Acres of Land, 547 F.3d 943, 955 (9th Cir. 2008). Plaintiff
identifies no plausible grounds for reconsideration. Smith v. Clark Cnty. Sch.
Dist., 727 F.3d 950, 955 (9th Cir. 2013).
AFFIRMED.
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