NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAXINE DUGAS, No. 16-56623

Plaintiff - Appellant, D.C. No. 2:15-cv-09488-RGK-AFM

v.

MEMORANDUM*

LOCKHEED MARTIN CORPORATION;

DOES, 1–100, inclusive,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted May 15, 2018 Pasadena, California

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Maxine Dugas appeals the district court’s orders granting summary

judgment in favor of Lockheed Martin Corporation (“Lockheed”) and awarding

costs to Lockheed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We review a district court’s summary judgment determinations de novo,

considering the evidence in the light most favorable to the non-moving party.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir.

2014). “Summary judgment is appropriate where ‘there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56(a)). Although Dugas met her initial burden of

establishing a prima facie case of age and associational disability discrimination,

she failed to raise a genuine issue as to whether Lockheed’s proffered legitimate,

non-discriminatory reasons for its adverse employment actions were pretext. See

Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113–14 (Cal. 2000) (setting forth the test

used to analyze discrimination claims under California’s Fair Employment and

Housing Act).

2. Lockheed’s evidence shows that a slowdown in work and the need to cut

overhead were the actual reasons behind eliminating Dugas’s “administrative aide

specialist” position. On age discrimination, Dugas points out that the terminated

administrative aide specialists were older than the “administrative assistants”

whom Lockheed retained, and that Lockheed did not hire her for an open

administrative assistant position to which she later applied. However, these facts

do not create a genuine issue on pretext. There were other meaningful differences

between the administrative aide specialists and the administrative assistants that

could have motivated Lockheed’s termination decision, such as the fact that

administrative aide specialists enjoyed the benefits of union representation and

2 administrative assistants did not. See Hicks v. KNTV Television, Inc., 73 Cal. Rptr.

3d 240, 249 (Ct. App. 2008) (“[A] reason cannot be proved to be ‘a pretext for

discrimination’ unless it is shown both that the reason was false, and that

discrimination was the real reason.” (citation omitted)). Although Lockheed may

have ultimately hired a younger person to fill the position Dugas later applied for,

“[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position

[is] insufficient” to survive summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986). The district court therefore did not err in granting

summary judgment on Dugas’s age discrimination claim.

3. On disability discrimination, Dugas points to the declaration of a union

representative who claims that a Lockheed human resources manager told him that

Lockheed terminated the three administrative aide specialists because two of them

had disabilities. The manager allegedly stated that, although Dugas was not

disabled, she was terminated because the collective bargaining agreement required

that she be laid off before the others. This evidence fails to create a genuine issue

on pretext because Lockheed’s evidence showed that Billy Luffman, Dugas’s

supervisor, was the one who decided to terminate her, and Dugas’s evidence did

not raise a genuine dispute of material fact that others were involved in the

decision to terminate. Dugas was the only administrative aide specialist under

Luffman’s supervision, and the undisputed evidence showed that Luffman had no

3 knowledge or input into Lockheed’s decision to terminate the other administrative

aide specialists. Accordingly, Luffman had no basis to consider the other

administrative aide specialists’ disabilities in deciding to terminate Dugas, and the

union representative’s declaration fails to “demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the reasons

offered by [Lockheed] . . . that a reasonable trier of fact could rationally find the

reasons not credible.” Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 93 Cal. Rptr.

3d 338, 355–56 (Ct. App. 2009) (citation omitted). The district court therefore did

not err in granting summary judgment on Dugas’s associational disability

discrimination claim.

4. We review a district court’s order granting costs for abuse of discretion.

See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001). “Whether

the district court has the authority to award costs, however, is a question of law

reviewed de novo.” Russian River Watershed Prot. Comm. v. City of Santa Rosa,

142 F.3d 1136, 1144 (9th Cir. 1998) (citation omitted). The district court did not

err or abuse its discretion in awarding costs to Lockheed. Federal Rule of Civil

Procedure 54(d) governs the award of costs in civil cases unless a federal statute,

another federal rule of civil procedure, or a court order provides otherwise. Fed. R.

Civ. P. 54(d)(1); Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016,

1022 (9th Cir. 2003).

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AFFIRMED.

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