FILED

NOT FOR PUBLICATION

MAR 12 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONIA B. BACH, No. 19-17500

Plaintiff-Appellant, D.C. No. 1:18-cv-00103-LEK-WRP v.

COMMUNITY TIES OF AMERICA, MEMORANDUM*

INC.,

Defendant-Appellee,

and

DOES, John and Jane 1-5; DOE

CORPORATIONS, 1-5; DOE

PARTNERSHIPS, 1-5; DOE NON-

PROFIT ORGANIZATIONS, 1-5; DOE

GOVERNMENT AGENCIES, 1-5,

Defendants.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted February 2, 2021 Honolulu, Hawaii

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.

Plaintiff-Appellant Sonia Bach (“Bach”) filed suit against her former

employer, Defendant-Appellee Community Ties of America (“Community Ties”),

alleging that her termination was motivated by disability discrimination and

retaliation in violation of Haw. Rev. Stat. § 378-2(a)(1)–(2) and the Hawaii

Whistleblowers’ Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62. The District

Court granted summary judgment in favor of Community Ties with regard to all

the relevant claims. We have jurisdiction to review under 28 U.S.C. § 1291, and

we affirm.

Orders granting summary judgment are reviewed de novo. Diaz v. Eagle

Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). At the summary

judgment stage, we apply the familiar McDonnell Douglas burden-shifting

framework to the discrimination and retaliation claims at issue here. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see also French v. Haw.

Pizza Hut, Inc., 99 P.3d 1046, 1054–55 (Haw. 2004) (applying the burden shifting

framework to § 378-2 claims); Crosby v. State Dep’t of Budget & Fin., 876 P.2d

1300, 1310 (Haw. 1994) (applying the burden shifting framework to HWPA

claims).

2 Even assuming that the record contained sufficient facts to support a prima

facie showing of discrimination and retaliation for all three claims on the first step

of the McDonnell Douglas analysis, Bach failed to show that the overwhelming

evidence of non-discriminatory and non-retaliatory reasons for her termination

were pretextual, at the final step of the McDonnell Douglas analysis.

Community Ties provided evidence that it terminated Bach for legitimate

and nondiscriminatory reasons after it concluded there were significant

deficiencies in Bach’s performance and behavior. For example, when Bach’s

supervisor made quality assurance calls to Bach’s clients, thirteen out of thirty-

three reported issues with Bach’s performance or behavior. Four requested that

Bach be reassigned. The client complaints detailed a pattern of behavior that

Community Ties determined was unacceptable when compared against the

expectations listed in the job description, employee manual, and the company’s

anti-bullying policy.

To rebut this evidence, Bach provides only two forms of circumstantial

evidence to support a showing of pretext. First, Bach argues that the proximate

timing of the key chain of events—from her medical leave to probation to

termination—raises an inference of impermissible motive, especially because she

was terminated less than a week after submitting an accommodation request for her

3 medical condition. Second, Bach argues that Community Ties offered competing

and contradictory explanations for why it would need to fire her. During her

medical leave, her supervisor stated that Bach would have to be terminated because

the company would need to hire a replacement to fill in for her during her extended

medical leave. Eventually, however, the company cited performance-related

reasons for terminating Bach.

The timing of key events and shifting explanations for employment

decisions may, in some instances, give rise to an inference of pretext. See, e.g.,

Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 694 (9th Cir. 2017) (temporal

proximity); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996)

(shifting explanations). In this case, though, Bach failed to present evidence raising

a genuine issue of material fact as to whether she was terminated for legitimate,

non-discriminatory reasons.

When Bach went on medical leave, her supervisor had to cover Bach’s

workload, and in so doing, discovered deficiencies warranting a performance

improvement plan. Despite the plan, however, Community Ties continued to

receive unsolicited complaints about Bach during the probationary period, right up

until Bach’s termination. By the time Bach submitted her accommodation request,

Bach’s final paycheck had already been requested. On this record, no reasonable

4 fact finder could conclude that the proferred reasons for firing Bach were

pretextual.

For all of these reasons, we hold that Bach failed to carry her burden on the

final phase of the summary judgment analysis, and affirm.

AFFIRMED.

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