FILED

NOT FOR PUBLICATION

NOV 28 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEVERLY RUTT, No. 17-15788

Plaintiff-Appellant, D.C. No.

CV-14-02539-PHX-DLR

v.

MEMORANDUM*

WILBUR LOUIS ROSS, JR.,

SECRETARY, U.S. DEPARTMENT OF

COMMERCE,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Submitted November 14, 2018** San Francisco, California

Before: GRABER and BENNETT, Circuit Judges, and KOBAYASHI,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. Beverly Rutt appeals from the district court’s summary judgment in favor of

Wilbur Louis Ross, Jr., Secretary, U.S. Department of Commerce (“the

Department”) on her gender and age discrimination claims under Title VII of the

Civil Rights Act of 1964 and the Age Discrimination in Employment Act. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Mull ex rel. Mull

v. Motion Picture Indus. Health Plan, 865 F.3d 1207, 1209 (9th Cir. 2017). We

affirm.

Rutt failed to raise a genuine dispute of material fact as to whether the

Department’s legitimate non-discriminatory reasons for terminating her were

pretextual. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112–13 (9th

Cir. 2011) (noting that circumstantial evidence of pretext must be “‘specific’ and

‘substantial’” to create a triable issue (quoting Godwin v. Hunt Wesson, Inc., 150

F.3d 1217, 1222 (9th Cir. 1998))). The Department’s articulated reasons for Rutt’s

termination were her “questionable ” and “unusual ” work hours combined with

her low productivity. Although Rutt provided evidence that the Department did

not follow its termination documentation procedures and that three of her fellow

enumerators also exhibited low productivity, that evidence is insufficient to create

a genuine issue of material fact as to whether the Department’s articulated reasons

2 are pretextual because none of the other enumerators exhibited Rutt’s unique

pattern of questionable and unusual work hours combined with low productivity.

AFFIRMED.

3