Alice Wieland v. Board of Regents

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2024
• Docket: 23-15339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALICE WIELAND, No. 23-15339

Plaintiff-Appellant, D.C. No. 3:19-cv-00724-MMD-CLB v.

BOARD OF REGENTS OF THE NEVADA MEMORANDUM* SYSTEM OF HIGHER EDUCATION,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted February 15, 2024** San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

Plaintiff-Appellant Alice Wieland appeals from the district court’s order

granting summary judgment to Defendant-Appellee Board of Regents of the

Nevada System of Higher Education (the Board). We have jurisdiction under 28

* 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). U.S.C. § 1291, and we affirm.

1. The district court did not abuse its discretion by excluding the comparative

table that Wieland created and included in the opposition to summary judgment.

This court has “repeatedly held that unauthenticated documents cannot be

considered in a motion for summary judgment.” Orr v. Bank of Am., NT & SA,

285 F.3d 764, 773 (9th Cir. 2002) (collecting cases). Wieland failed to

authenticate the table because she did not offer any “evidence sufficient to support

a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a).

The district court also did not err by excluding the two declarations Wieland

offered in opposition to summary judgment. Those declarations contained

conclusory, speculative, or immaterial statements. The district court thus properly

concluded that the declarations were insufficient to raise a genuine dispute of

material fact. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th

Cir. 2003) (stating that a plaintiff “cannot defeat summary judgment

with . . . unsupported conjecture or conclusory statements”).

2. “We review a grant of summary judgment de novo.” Rodriguez v. Bowhead

Transp. Co., 270 F.3d 1283, 1286 (9th Cir. 2001). We apply the McDonnell

Douglas burden shifting framework to a claim of sex discrimination under Title

VII. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002).

The Board offered a legitimate, nondiscriminatory reason for denying Wieland’s

2 tenure application: her deficient teaching performance. See Aragon v. Republic

Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002) (stating that poor job

performance is a legitimate, nondiscriminatory reason to take an adverse

employment action). The burden thus shifts to Wieland to offer evidence that the

Board’s proffered reason is pretext for discriminatory intent. See Wallis v. J.R.

Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). When a plaintiff relies on

circumstantial evidence to show pretext, that evidence “must be both specific and

substantial.” Villiarimo, 281 F.3d at 1062.

Wieland argues that the Board relied on biased student reviews, that two

male faculty members had similar student ratings but received tenure, and that

university bylaws were not strictly followed when the Board evaluated her tenure

application. But Wieland does not point to any evidence that the student reviews

were in fact biased, nor does she demonstrate that the two male faculty members

were similarly situated “in all material respects.” Moran v. Selig, 447 F.3d 748,

755 (9th Cir. 2006). Moreover, the evidence she points to is entirely

circumstantial. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.

2005) (“Circumstantial evidence, in contrast [to direct evidence], is evidence that

requires an additional inferential step to demonstrate discrimination.”). We

conclude that this evidence is neither specific nor substantial and is thus

insufficient to raise a genuine dispute that her sex “actually motivated the

3 employer’s decision.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

AFFIRMED.