FILED

NOT FOR PUBLICATION

APR 20 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELSA CHAVEZ, No. 16-55957

Plaintiff-Appellant, D.C. No. 2:15-cv-02328-DDP-PJW v.

JPMORGAN CHASE & CO.; DOES, 1 MEMORANDUM*

through 100, Inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted February 14, 2018 Pasadena, California

Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District Judge.

Elsa Chavez sued her former employer JPMorgan Chase Bank (“JPMC”) in

California state court, asserting claims under the California Fair Employment and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John A. Woodcock, Jr., United States District Judge for the district of Maine, sitting by designation. Housing Act (“FEHA”), the California Family Rights Act (“CFRA”), California

Labor Code § 226, and California common law. JPMC removed to federal court,

where it won summary judgment on all claims. In an accompanying opinion, we

conclude that we have subject matter jurisdiction to hear this appeal. Here, we

review the merits of the district court’s summary judgment decision, and affirm

with respect to all claims, except the CFRA interference claim and § 226 claim.

1. We review the district court’s grant of summary judgment de novo.

Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 685 (9th Cir. 2017). To begin

with, summary judgment was appropriate on Chavez’s claim for disability

discrimination under FEHA. A plaintiff claiming discrimination under FEHA

bears the initial burden of establishing a prima facie case. Sandell v. Taylor-Listug,

Inc., 115 Cal. Rptr. 3d 453, 462 (Cal. Ct. App. 2010). Upon establishing a prima

facie case, a presumption of discrimination arises, and the burden shifts to the

defendant to rebut that presumption by producing evidence that its action was

taken for a legitimate, nondiscriminatory reason. Id. If the defendant sustains this

burden, the presumption of discrimination disappears, and the plaintiff must then

demonstrate that the defendant’s proffered reason is pretextual. Id.

In this case, we need not decide whether Chavez has established a prima

facie case because it is clear that her claim fails by the final stage of the burden-

2 shifting framework. JPMC presented extensive evidence that it terminated Chavez

for failing to meet its minimum performance standards. In response, Chavez

alleges only that she told her supervisor that she felt stressed, experienced

numbness and headaches, and saw a doctor on one occasion. This is insufficient to

carry her ultimate burden of showing that JPMC’s stated reason for terminating her

was pretext for disability discrimination. See Soria v. Univision Radio L.A., Inc.,

210 Cal. Rptr. 3d 59, 78 (Cal. Ct. App. 2016); Brundage v. Hahn, 66 Cal. Rptr. 2d

830, 836–37 (Cal. Ct. App. 1997).

2. Summary judgment was likewise appropriate on Chavez’s claim for

age discrimination under FEHA. The same burden-shifting framework set forth

above applies to this claim as well, see Dinslage v. City & County of San

Francisco, 209 Cal. Rptr. 3d 809, 817 (Cal. Ct. App. 2016), and once again,

Chavez’s claim fails by the final stage. Chavez alleges that she was replaced by a

younger employee and that a branch manager told her “you should be retired by

now” and called her “Tia.” But there is no evidence that Chavez’s successor was

in fact substantially younger than her,1 and the alleged remarks from the branch

manager do not raise a triable issue of fact in light of JPMC’s evidence of

1 At most, a branch manager testified to her belief that Chavez was “in her late 40s, early 50s,” while Chavez’s successor was in her “[l]ate 40s.” 3 Chavez’s consistently poor performance. Similarly, Chavez’s testimony that her

supervisor told her that a district manager told him that she was passed over for

another position in favor of someone younger is—even if admissible—insufficient

to raise a triable issue of fact. As such, Chavez cannot show that JPMC’s reason

for terminating her was pretext for age discrimination.

3. Chavez’s claim for wrongful termination under California common

law is derivative of her FEHA claims and fails for the same reasons. See Merrick

v. Hilton Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir. 2017).

4. Chavez appears to assert both retaliation and interference claims under

the CFRA. Chavez’s CFRA retaliation claim is subject to the same burden-shifting

framework as her FEHA discrimination claims and likewise fails because she

cannot show that JPMC’s reason for terminating her was pretextual. See Bareno v.

San Diego Cmty. Coll. Dist., 212 Cal. Rptr. 3d 682, 692 (Cal. Ct. App. 2017).

Chavez has, however, raised a genuine dispute of material fact on her CFRA

interference claim. Unlike a retaliation claim, “[a]n interference claim under

CFRA does not invoke the burden shifting analysis.” Moore v. Regents of the

Univ. of California, 206 Cal. Rptr. 3d 841, 869 (Cal. Ct. App. 2016). The elements

of a such a claim are (1) “the employee’s entitlement to CFRA leave rights” and

(2) “the employer’s interference with or denial of those rights.” Id. The employee

4 need not expressly assert her rights under the CFRA, or even mention the CFRA,

but need only provide notice sufficient to make her employer aware that she needs

CFRA-qualifying leave. Cal. Code Regs. tit. 2, § 11091. Chavez testified that she

told her supervisor she was experiencing numbness and a lot of headaches;

informed him that she needed to see a doctor for these reasons; and complained

that she was not able to take a vacation. She has raised a triable issue of fact as to

whether she provided notice sufficient to make JPMC aware that she needed

CFRA-qualifying leave. See Bareno, 212 Cal. Rptr. 3d at 698; Soria, 210 Cal.

Rptr. 3d at 87; Moore, 206 Cal. Rptr. 3d at 869.

5. So too, Chavez has raised a genuine dispute of material fact with

respect to her claim under California Labor Code § 226(c). Section 226(c) grants

current and former employees the right to inspect or copy their employment

records upon request. An employer who receives such a request must comply “as

soon as practicable, but no later than 21 calendar days from the date of the

request.” Cal. Labor Code § 226(c). If the employer fails to do so, the employee is

entitled to $750 in statutory damages. Id. § 226(f).

Chavez’s counsel sent JPMC a letter by certified mail requesting Chavez’s

employment records. JPMC does not dispute that it never responded to the letter;

rather, it argues the letter was improperly addressed or not received. Under

5 California law, “[a] letter correctly addressed and properly mailed is presumed to

have been received in the ordinary course of mail.” Cal. Evid. Code § 641. JPMC

offers no evidence to support its assertion that the letter was improperly addressed,

and assuming the letter was properly addressed, JPMC has not rebutted the

presumption it was received. There thus remains a triable issue of fact on this

claim.

JPMC also argues that Chavez must establish that it knowingly and

intentionally disregarded her request for employment records. This is incorrect.

Section 226(e) provides a statutory penalty for an employer’s “knowing and

intentional failure . . . to comply with subdivision (a)” of the statute, which is not at

issue here. Cal. Labor Code § 226(e) (emphasis added). By contrast, § 226(f)

provides the statutory penalty for a violation of subdivision (c)—the relevant

subdivision here—and includes no “knowing and intentional” requirement.

Accordingly, Chavez need not establish that JPMC knowingly and intentionally

disregarded her request.

In sum, we AFFIRM summary judgment on Chavez’s FEHA claims,

wrongful termination claim, and CFRA retaliation claim; we REVERSE on

Chavez’s CFRA interference claim and California Labor Code § 226 claim; and we

REMAND to the district court for further proceedings.

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