Jones v. U.S. Bank National Ass'n

294 F. App'x 281

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2008
• Docket: No. 06-35577
• Status: Published

Opinions

MEMORANDUM

*

Susan Jones appeals the district court’s grant of U.S. Bank’s summary judgment motion and the district court’s denial of her motion to amend her complaint.

The district court did not abuse its discretion when it denied Jones’s motion to amend as futile. See Chappel v. Laboratory Corp., 232 F.3d 719, 725 (9th Cir.2000).

It is likely that the Washington Supreme Court would require Jones to show that the alleged age-related disparate treatment she received rose to the level of an adverse employment action. See Dias v. Elique, 436 F.3d 1125, 1129 (9th Cir.2006) (explaining that in the absence of controlling Washington Supreme Court authority, we interpret Washington law as we believe the Washington Supreme Court would); see also Berry v. Dep’t of Soc. Servs., 447 F.3d 642 (9th Cir.2006) (disparate treatment in an age-related case must rise to the level of an adverse employment action); Antonius v. King County, 153 Wash.2d 256, 103 P.3d 729 (2004); Xieng v. Peoples Nat’l Bank of Wash., 120 Wash.2d 512, 844 P.2d 389 (1993); Hegwine v. Longview Fibre Co., 132 Wash.App. 546, 132 P.3d 789 (2006); Kirby v. City of Tacoma, 124 Wash.App. 454, 98 P.3d 827 (2004). Jones cannot make out a prima facie case of age-related disparate treatment prior to her termination because she has not shown that the alleged disparate treatment rises to the level of an adverse employment action.

Moreover, even if the Washington Supreme Court would not require an adverse employment action, Jones has not shown that she was treated differently than any similarly situated employees performing substantially the same work, so she cannot make out a prima facie- case of age-related disparate treatment. She has not provided evidence of any other supervisory employee who similarly undermined workplace morale by making demeaning references to higher level management, which ultimately management found out about. Because amendment to the complaint would have been futile, the district court did not abuse its discretion by denying her motion to amend her complaint.

The district court similarly did not err in granting U.S. Bank’s motion for summary judgment. The Washington Supreme Court follows the evidentiary burden-shifting protocol the Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 23 P.3d 440 (2001). Jones has made a prima facie showing of age-related discriminatory discharge. See Gnimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 753 P.2d 517, 520 (1988). U.S. Bank has satisfied its burden by producing evidence of a legitimate, nondiscriminatory explanation for terminating Jones. Jones, however, failed to show that U.S. Bank’s stated reason for the firing her was merely pretextual. See, e.g., Griffith v. Schnitzer Steel Industries, Inc., 128 Wash.App. 438, 115 P.3d 1065, 1070 (2005); Kirby v. City of Tacoma, 124 Wash.App. 454, 98 P.3d 827, 834 (2004). U.S. Bank is therefore entitled to judgment as a matter of law, and the district court did not err in granting U.S. Bank’s summary judgment motion. See Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 23 P.3d 440, 446 (2001).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.