BACH v. Does, John and Jane 1-5; Doe Corporations, 1-5; Doe Partnerships, 1-5; Doe Non-Profit Organizations, 1-5; Doe Government Agencies, 1-5, Defendants. (2021)

United States Court of Appeals, Ninth Circuit.2021-03-12No. No. 19-17500

Summary · law.co

Holding. The court affirmed the district court's grant of summary judgment, holding that Bach failed to demonstrate that Community Ties' proffered nondiscriminatory reasons for termination were pretextual.

Sonia Bach appealed a district court's grant of summary judgment dismissing her claims that her former employer, Community Ties of America, terminated her employment due to disability discrimination and retaliation in violation of Hawaii law. Bach alleged violations of the state's disability discrimination statute and whistleblower protection act. The appellate court reviewed the case using the McDonnell Douglas burden-shifting framework applicable to employment discrimination claims. Although the court assumed Bach could have established a preliminary case of discrimination or retaliation, it found that Community Ties presented substantial evidence of legitimate, nondiscriminatory reasons for the termination—specifically, documented performance deficiencies and behavioral concerns reported by multiple clients during quality assurance reviews.

Bach attempted to counter the employer's evidence by pointing to the temporal proximity between her medical leave, subsequent probation, and termination occurring within days of submitting an accommodation request, as well as what she characterized as shifting explanations from the company. The court acknowledged that timing and inconsistent justifications can sometimes suggest pretext, but concluded that in this instance, the record did not support such an inference. The supervisor's discovery of performance problems during Bach's medical leave, combined with ongoing client complaints throughout the probationary period and the timing of the final paycheck request before the accommodation submission, led the court to determine that no reasonable fact finder could doubt the employer's stated performance-based rationale.

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Key issues

Whether temporal proximity between medical leave and termination supports an inference of disability discrimination
Whether shifting explanations for an employment decision can establish pretext at summary judgment
Application of McDonnell Douglas burden-shifting framework to disability discrimination and retaliation claims under Hawaii law

Procedural posture

The plaintiff appealed from a district court's order granting summary judgment in favor of the employer on claims of disability discrimination and retaliation.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM *

Plaintiff-Appellant Sonia Bach (“Bach”) filed suit against her former employer, Defendant-Appellee Community Ties of America (“Community Ties”), alleging that her termination was motivated by disability discrimination and retaliation in violation of Haw. Rev. Stat. § 378-2(a)(1)–(2) and the Hawaii Whistleblowers’ Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62. The District Court granted summary judgment in favor of Community Ties with regard to all the relevant claims. We have jurisdiction to review under 28 U.S.C. § 1291, and we affirm.

Orders granting summary judgment are reviewed de novo. Diaz v. Eagle Produce Ltd. Pship, 521 F.3d 1201, 1207 (9th Cir. 2008). At the summary judgment stage, we apply the familiar McDonnell Douglas burden-shifting framework to the discrimination and retaliation claims at issue here. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also French v. Haw. Pizza Hut, Inc., 99 P.3d 1046, 1054–55 (Haw. 2004) (applying the burden shifting framework to § 378-2 claims); Crosby v. State Dept of Budget & Fin., 876 P.2d 1300, 1310 (Haw. 1994) (applying the burden shifting framework to HWPA claims).

Even assuming that the record contained sufficient facts to support a prima facie showing of discrimination and retaliation for all three claims on the first step of the McDonnell Douglas analysis, Bach failed to show that the overwhelming evidence of non-discriminatory and non-retaliatory reasons for her termination were pretextual, at the final step of the McDonnell Douglas analysis.

Community Ties provided evidence that it terminated Bach for legitimate and nondiscriminatory reasons after it concluded there were significant deficiencies in Bachs performance and behavior. For example, when Bachs supervisor made quality assurance calls to Bachs clients, thirteen out of thirty-three reported issues with Bachs performance or behavior. Four requested that Bach be reassigned. The client complaints detailed a pattern of behavior that Community Ties determined was unacceptable when compared against the expectations listed in the job description, employee manual, and the companys anti-bullying policy.

To rebut this evidence, Bach provides only two forms of circumstantial evidence to support a showing of pretext. First, Bach argues that the proximate timing of the key chain of events—from her medical leave to probation to termination—raises an inference of impermissible motive, especially because she was terminated less than a week after submitting an accommodation request for her medical condition. Second, Bach argues that Community Ties offered competing and contradictory explanations for why it would need to fire her. During her medical leave, her supervisor stated that Bach would have to be terminated because the company would need to hire a replacement to fill in for her during her extended medical leave. Eventually, however, the company cited performance-related reasons for terminating Bach.

The timing of key events and shifting explanations for employment decisions may, in some instances, give rise to an inference of pretext. See, e.g., Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 694 (9th Cir. 2017) (temporal proximity); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (shifting explanations). In this case, though, Bach failed to present evidence raising a genuine issue of material fact as to whether she was terminated for legitimate, non-discriminatory reasons.

When Bach went on medical leave, her supervisor had to cover Bachs workload, and in so doing, discovered deficiencies warranting a performance improvement plan. Despite the plan, however, Community Ties continued to receive unsolicited complaints about Bach during the probationary period, right up until Bachs termination. By the time Bach submitted her accommodation request, Bachs final paycheck had already been requested. On this record, no reasonable fact finder could conclude that the proferred reasons for firing Bach were pretextual.

For all of these reasons, we hold that Bach failed to carry her burden on the final phase of the summary judgment analysis, and affirm.

AFFIRMED.