Sharon Brockbank v. Us Bancorp

FILED

NOT FOR PUBLICATION JAN 28 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SHARON BROCKBANK, No. 11-35618

Plaintiff - Appellant, D.C. No. 1:09-cv-00037-EJL-

CWD

v.

U.S. BANCORP, a Delaware corporation, MEMORANDUM * d/b/a U.S. Bank,

Defendant - Appellee.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted November 6, 2012 Portland, Oregon

Before: RIPPLE,** McKEOWN, and NGUYEN, Circuit Judges.

Sharon Brockbank (“Brockbank”) appeals the district court’s grant of

summary judgment in favor of her former employer, U.S. Bancorp (“U.S. Bank”),

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior Circuit Judge for the Seventh Circuit, sitting by designation. on her age and gender discrimination claims under the Age Discrimination in

Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964,

respectively. We reverse…

MEMORANDUM **

Sharon Brockbank (“Brockbank”) appeals the district court’s grant of summary judgment in favor of her former employer, U.S. Bancorp (“U.S. Bank”), on her age and gender discrimination claims under the Age Discrimination in Employment Act (“ADEA”) and Title VII of the CM Rights Act of 1964, respectively. We reverse in part, affirm in part, and remand.

ADEA Claim

The district court correctly found that there was no direct evidence of age discrimination because the alleged ageist comments relied upon by Brockbank, when viewed in context, are insufficient to directly prove age discrimination. See Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir.2004) (defining “direct evidence”). Moreover, as the district court noted, the comments “lack a temporal and contextual connection” to Brock-bank’s termination.

The district court, however, erred in finding that Brockbank failed to establish through circumstantial evidence a pri-ma facie case for age discrimination. To establish a prima facie case, Brockbank must show that she was: “(1) at least forty years old, (2) performing [her] job satisfac *606 torily, (3) discharged, and (4) either replaced by…

concurring in part and dissenting in part:

I agree with the majority that the district court properly granted summary judgment to U.S. Bank on Ms. Brock-bank’s gender discrimination claim. However, because I do not agree that Ms. Brockbank has demonstrated sufficiently that U.S. Bank’s proffered reason for her termination was pretextual, I would affirm the decision of the district court with respect to Ms. Brockbank’s age discrimination claim.

Assuming that Ms. Brockbank has established a prima facie case of age discrimination under the familiar paradigm of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), the burden shifts to U.S. Bank “to articulate a legitimate, nondiscriminatory reason for its adverse employment action.” Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 1207 (9th Cir.2008). In order to meet the burden, U.S. Bank has presented evidence that it terminated Ms. Brockbank because of her misuse of her corporate credit card. U.S. Bank has explained consistently its corporate credit card policy: the corporate credit card is only for business-related expenses; U.S. Bank tolerates accidental and isolated misuse of the corporate credit…