FILED

NOT FOR PUBLICATION

APR 27 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CELY TABLIZO, No. 17-15520

Plaintiff–Appellant, D.C. No. 2:14-cv-00763-APG-VCF v.

CITY OF LAS VEGAS, MEMORANDUM*

Defendant–Appellee.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted April 11, 2018** San Francisco, California

Before: KLEINFELD, W. FLETCHER, and FISHER, Circuit Judges.

Plaintiff-Appellant Cely Tablizo appeals the district court’s grant of

summary judgment for Defendant-Appellee the City of Las Vegas. We have

jurisdiction under 28 U.S.C. § 1291. We review the grant of summary judgment de

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). novo, Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004), and

evidentiary rulings and sanctions for abuse of discretion, Hoffman v. Constr.

Protective Servs., Inc., 541 F.3d 1175, 1178 (9th Cir. 2008). We affirm in part,

reverse in part, and remand.1

I.

There are no genuine issues of material fact regarding the claims brought

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Tablizo has not presented evidence that City employees had discriminatory

motives or treated her differently than her co-workers because of her ethnicity or

race. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 690–91 (9th Cir.

2017); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 605 (9th Cir. 2004). The

evidence does not show that Tablizo experienced a hostile work environment

because of her ethnicity or race. See Vasquez, 349 F.3d at 643–44. The evidence

does not show that the City retaliated against Tablizo because she filed complaints

with the Equal Employment Opportunity Commission and the Nevada Equal

Rights Commission. There is no evidence of a causal relationship between those

complaints and any adverse employment action. See Clark Cty. Sch. Dist. v.

1 We do not address the merits of Tablizo’s claim for intentional infliction of emotional distress. She conceded to its dismissal at the district court. 2 Breeden, 532 U.S. 268, 273–74 (2001) (per curiam). And Tablizo has not

presented evidence that the City’s legitimate, nondiscriminatory reasons for

disciplining and firing her were pretextual. See Aragon v. Republic Silver State

Disposal, Inc., 292 F.3d 654, 664 (9th Cir. 2002). Therefore, we affirm the district

court’s grant of summary judgment in favor of the City on Tablizo’s Title VII

claims.

II.

Tablizo also brought claims under the Family and Medical Leave Act of

1993, 29 U.S.C. §§ 2601 et seq., and for negligence. The district court excluded

evidence of damages for those claims under Federal Rule of Civil Procedure

37(c)(1) because Tablizo failed to disclose a “computation of . . . damages

claimed” as required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii). As a

result of this exclusionary sanction, the district court granted summary judgment to

the City on the FMLA and negligence claims, reasoning that Tablizo could not

prove damages, which is an essential element of both claims.

Although Tablizo failed to satisfy Rule 26(a)(1)(A)(iii), the district court

nevertheless did not make findings sufficient to support its exclusion of evidence

of damages under Rule 37(c)(1). When a Rule 37(c)(1) sanction will result in the

functional dismissal of a claim, the district court is required to find “the claimed

3 noncompliance involved willfulness, fault, or bad faith, and also to consider the

availability of lesser sanctions.” R & R Sails v. Ins. Co. of Pa., 673 F.3d 1240,

1247 (9th Cir. 2012) (citations omitted); see also Toyrrific, LCC v. Karapetian, 606

F. App’x 365, 365 (9th Cir. 2015) (“Here, excluding damages evidence was fatal to

Toyrrific’s claim. . . . Accordingly, the district court erred as a matter of law by

imposing Rule 37(c)(1) exclusionary sanctions without finding that Toyrrific’s

‘noncompliance involved willfulness, fault, or bad faith,’ and without considering

‘the availability of lesser sanctions.’” (quoting R & R Sails, 673 F.3d at 1247)).

Instead of undertaking this inquiry or making the needed findings, the

district court stated its Rule 37(c)(1) sanction was “automatic” and “mandatory.”

The district court relied on Yeti by Molly Ltd v. Deckers Outdoor Corp., 259 F.3d

1101, 1106 (9th Cir. 2001), to support its imposition of the exclusionary sanction.

But the Yeti court recognized a district court must find willfulness, fault or bad

faith before imposing a Rule 37(c)(1) sanction that effectively dismisses a cause of

action. See Yeti, 259 F.3d 1101, 1106 (“[T]his case is distinguishable from cases

in which we have required a district court to identify ‘willfulness, fault, or bad

faith’ . . . . These cases do not apply because this sanction, although onerous, was

less than a dismissal.”); see also R & R Sails, 673 F.3d at 1247 n.1 (“In Yeti by

Molly, we implicitly recognized this requirement that the district court must make

4 a finding of willfulness, fault, or bad faith when a Rule 37(c)(1) sanction results in

dismissal of a cause of action.”).

Because the district court did find willfulness, fault or bad faith and did not

consider the availability of lesser sanctions, we conclude it erred in excluding

evidence of damages under Rule 37(c)(1). We therefore reverse and remand for

the district court to apply the correct standard and make the needed findings. Each

party shall bear their own costs.

AFFIRMED in part, REVERSED in part, and REMANDED.

5