FILED

NOT FOR PUBLICATION

MAR 22 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERESITA L. VIANA, an individual, No. 16-56346

Plaintiff-Appellant, D.C. No. 2:15-cv-08316-JFW-AS v.

FEDEX CORPORATE SERVICES, INC., MEMORANDUM*

a Delaware corporation doing business as FedEx Services,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted February 7, 2018 Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,** District Judge.

Teresita Viana brought this action against FedEx Corporate Services, Inc.

(“FedEx”) alleging that after 15 years of working with FedEx her employment was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. terminated because of her age, gender, and national origin. The district court

granted summary judgment for FedEx finding that FedEx had a legitimate reason

for terminating Viana, falsification of records, and that Viana could not show that

this reason was a pretext. Viana appeals. We vacate and remand because Viana

made a prima facie showing of discrimination and raised substantial questions as to

whether FedEx’s investigation, which was conducted by Scott McMurrey, her

supervisor, was pretextual.

Under the burden shifting framework set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802–803 (1973), Viana had the burden of first establishing

a prima facie case of discrimination. FedEx then had the burden of producing

evidence of a legitimate non-discriminatory reason for the termination, and if

FedEx were successful, the burden shifted back to Viana to “prove by a

preponderance of the evidence that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimination.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation

marks omitted); see also Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207

(9th Cir. 2008); Guz v. Bechtel Nat'l, Inc., 8 P.3d 1089, 1113 (2000).

On summary judgment, the court must draw all inferences in favor of the

non-moving party. Diaz, 521 F.3d at 1207. We review a grant of summary

2 judgment de novo. Los Coyotes Band of Cahuilla & Cupeno Indians v. Jewell, 729

F.3d 1025, 1035 (9th Cir. 2013).

Viana presented evidence that McMurrey was biased against her because of

her age, gender, and national origin. FedEx argues that Viana did not make a

sufficient factual showing of discrimination and failed to tie the alleged

discrimination to the termination of her employment. However, the district court

accepted, or assumed, that Viana had made a prima facie showing of

discrimination and proceeded to hold that FedEx had a legitimate non-

discriminatory reason for terminating Viana, the falsification of records. In light of

the minimal standard for making a prima facie showing of discrimination, see

Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000),

we conclude from our review of the record that, at least for the purposes of

summary judgment, Viana made a prima facie showing of discrimination. For

example, there was evidence that McMurrey called Viana a “bitch” and used other

derogatory and sexist terms to refer to her.

We further determine that the proffered evidence was sufficient to raise

material issues as to the legitimacy of FedEx’s determination that Viana had

falsified records. In Reeves, the Supreme Court noted that:

3 although the presumption of discrimination “drops out of the picture” once the defendant meets its burden of production, St. Mary's Honor Center [v. Hicks, 509 U.S. 502, 511 (1993)], 113 S. Ct. 2742, the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case “and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual,” [Texas Dep’t. Of Cmty. Affairs v.] Burdine, [450 U.S. 248, 255 n.10 (1981)], 101 S. Ct. 1089.

530 U.S. at 143. Here, Viana offered reasonable explanations for the alleged

mileage overages that McMurrey did not address. Viana offered reasonable

explanations for the allegations that she was on the internet system at the

same time as she was allegedly making sales calls, which McMurrey did not

address. Viana also offered evidence that the declarations McMurrey

secured from clients—to the effect that Viana did not meet with them when

she said she did—were incomplete, and that subsequent declarations from

these clients stated that they did not know whether Viana had visited the

locations on certain days. In addition, the record shows that FedEx’s

investigation was conducted entirely by McMurrey and that Viana was never

given the opportunity to respond to McMurrey’s allegations against her until

after her employment was terminated. See Poland v. Chertoff, 494 F.3d

1174, 1182 (9th Cir. 2007) (holding that “the subordinate’s bias is imputed

to the employer if the plaintiff can prove that the allegedly independent

4 adverse employment decision was not actually independent because the

biased subordinate influenced or was involved in the decision or

decisionmaking process”).

Contrary to the district court’s perspective, this evidence could

support a jury determination that FedEx’s claim that Viana had falsified

records was a pretext. As the Supreme Court noted in Reeves, “a plaintiff’s

prima facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated.” 530 U.S. at 148.

Accordingly, the district court, on the motion for summary judgment, should

not have weighed the evidence and characterized McMurrey’s alleged

discriminatory remarks as only “stray remarks.” See Dominguez-Curry v.

Nevada Transp. Dept., 424 F.3d 1027, 1039 (9th Cir. 2005) (“[W]e have

repeatedly held that a single discriminatory comment by a plaintiff’s

supervisor or decisionmaker is sufficient to preclude summary judgment for

the employer.”).

Viana also asserted a claim for unpaid wages. California Labor Code

§§ 201 through 204 require that upon termination, an employer must pay an

employee all wages that have been earned. The record shows that FedEx

5 paid Viana all the wages she had earned when her job was terminated.

Viana’s argument that she would have earned more wages if one of her

accounts had not been reassigned might be relevant to a determination of

damages should Viana prevail on her other causes of action, but it does not

give rise to a claim for unpaid wages.

The district court’s grant of summary judgment is vacated, except as

to Viana’s claim for unpaid wages which is affirmed. The case is remanded

to the district court. Costs are awarded to Viana.

Vacated in part, affirmed in part, and remanded.

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