FILED

NOT FOR PUBLICATION

JUN 08 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRESA FLOYD, a single woman, No. 16-15450

Plaintiff-Appellant, D.C. No. 2:14-cv-02617-NVW

v.

MEMORANDUM*

COUNTY OF MARICOPA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted June 5, 2017 Pasadena, California

Before: THOMAS, Chief Judge, REINHARDT, Circuit Judge, and KORMAN,** District Judge.

Tresa Floyd appeals the district court’s grant of summary judgment to

Maricopa County on her claims under the Family and Medical Leave Act

(“FMLA”) and the Americans with Disabilities Act (“ADA”). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the history and facts of this case, we need not recount them here.

I

The district court did not err by granting summary judgment to the County

on Floyd’s FMLA claim. Under the FMLA, a covered employee may take up to

twelve weeks of leave for her own serious illnesses or to care for family members.

Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 (9th Cir. 2001) (citing

29 U.S.C. § 2612(a), 1614(a)(1)). The FMLA guarantees the employee

reinstatement after exercising her leave rights. Id. In addition to these substantive

rights, the FMLA provides protection in the event an employer discriminates

against an employee for exercising those rights. Id. at 1122–24. There are two

types of claims under the FMLA: interference claims, in which employers

“interfere with, restrain, or deny the exercise of or the attempt to exercise, any right

provided” by the FMLA; and retaliation claims, in which employers discriminate

against employees “for instituting or participating in FMLA proceedings or

inquiries.” Id. at 1122, 1124 (quoting 29 U.S.C. § 2615(a)(1)). Floyd brings only

an interference claim in this case. To prevail on her claim, Floyd must prove by a

preponderance of the evidence that her taking of FMLA-protected leave constituted

a negative factor in the decision to demote her. Id. at 1125. “She can prove this

2 claim, as one might any ordinary statutory claim, by using either direct or

circumstantial evidence, or both.” Id.

Floyd did not tender sufficient evidence to create a genuine issue of material

fact as to causation. At best, Floyd shows that she subjectively believed that her

supervisor was unhappy with her FMLA leave, but this is not sufficient to, by

itself, demonstrate causation. Absent stray remarks by her supervisor, there is no

record evidence showing a causal link between her availment of FMLA benefits

and her demotion. Moreover, the County has met its burden of establishing it had

legitimate reasons to demote Floyd for a number of reasons, several of which

Floyd conceded. Therefore, summary judgment was appropriate on this claim.

II

The district court likewise did not err by granting summary judgment to the

County on Floyd’s ADA claim. To state a prima facie case under the ADA, Floyd

must show that: (1) she is disabled within the meaning of the ADA; (2) she is a

qualified individual, meaning she can perform the essential functions of her job;

and (3) the County terminated her because of her disability. Nunes v. Wal-Mart

Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999) (stating that “[t]he ADA prohibits

an employer from discriminating against a qualified individual with a disability

because of the disability”) (quoting 42 U.S.C. § 12112(a)). Discrimination claims

3 under the ADA are subject to the burden-shifting framework outlined in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Curley v. City

of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014).

Floyd cannot make a prima facie case of discrimination under the ADA

because she cannot establish that the County terminated her because of her

disability. Floyd did not establish that the person responsible for her demotion

decision was aware of Floyd’s disability. Even assuming that Floyd stated a prima

facie case, the County met its burden to articulate legitimate, nondiscriminatory

reasons for Floyd’s demotion. Moreover, Floyd has failed to produce evidence,

aside from stray remarks from her supervisor, that the reasons given for her

demotion were a “pretext for discrimination.” See Reeves v. Sanderson Plumbing,

530 U.S. 133, 143 (2000).

AFFIRMED.

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