NOT FOR PUBLICATION FILED APR 15 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LAKISHA LEWIS, No. 24-1879 D.C. No. Plaintiff - Appellant, 2:21-cv-00464-CDS-MDC v. MEMORANDUM* SUNRISE HOSPITAL AND MEDICAL CENTER LLC,
Defendant - Appellee.
Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding
Submitted March 31, 2025** Pasadena, California
Before: M. SMITH and VANDYKE, Circuit Judges, and MAGNUS- STINSON, 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 this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jane Magnus-Stinson, United States District Judge for the Southern District of Indiana, sitting by designation. Plaintiff Lakisha Lewis timely appeals the district court’s entry of summary
judgment in favor of her former employer, Defendant Sunrise Hospital and
Medical Center, LLC (Sunrise), in this employment action brought under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Nevada Fair
Employment Practices Act. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing the alleged evidentiary errors for abuse of discretion, Hartzell v.
Marana Unified Sch. Dist., 130 F.4th 722, 734 (9th Cir. 2025), and the grant of
summary judgment de novo, Okonowsky v. Garland, 109 F.4th 1166, 1178 (9th
Cir. 2024), we affirm.
We recite only facts necessary to decide this appeal because the parties are
familiar with the facts and procedural history of the case. Lewis was employed by
Sunrise until she was suspended without pay after several of her coworkers
submitted complaints to Sunrise’s Human Resources Department (HR) regarding
Lewis’s behavior at work. But before the coworkers’ complaints, Lewis submitted
complaints about their behavior at work and alleged that they were discriminating
against her. Lewis’s complaints were investigated and found to be unsubstantiated.
Sunrise then investigated the coworkers’ complaints about Lewis and ultimately
concluded that it should terminate her for a failure to follow its Respectful
Workplace Policy.
2 24-1879 1. Evidentiary Issues: Lewis raises two evidentiary arguments. First, she
argues that the district court erred when it overruled her hearsay objection to
several emails sent by her coworkers to HR complaining about Lewis’s behavior at
work. The emails are not hearsay because they were not offered for their truth
(that Lewis was an unpleasant coworker) but rather were offered to show that
Sunrise received the complaints and that the complaints informed Sunrise’s
decision-making process regarding Lewis’s employment. Fed. R. Evid. 801(c);
Haddad v. Lockheed Ca. Corp., 720 F.2d 1454, 1456 (9th Cir. 1983). The district
court did not abuse its discretion in overruling Lewis’s hearsay objection.
Second, Lewis argues that the district court erred when it overruled her
hearsay and prejudice objections to the Equal Employment Opportunity
Commission’s (EEOC) Closure Letter from the underlying EEOC Complaint that
she filed against Sunrise, which concluded that there were insufficient facts to
continue an investigation. Lewis’s hearsay argument is undeveloped and devoid of
any citation to relevant legal authority and is therefore waived. Badgley v. United
States, 957 F.3d 969, 979 (9th Cir. 2020) (“Arguments made in passing and not
supported by citations to the record or to case authority are generally deemed
waived.”) (quoting United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)). As
to her Rule 403 prejudice objection, we have held that where an EEOC letter
concludes that there are insufficient facts to continue an investigation, the district
3 24-1879 court must “weigh the letter’s prejudicial effect against its probative value pursuant
to Rule 403.” Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir.
1999). The district court did not conduct a Rule 403 analysis, but this was
harmless error. See id. at 1015-16 (finding harmless error when no Rule 403
analysis was conducted before admitting the EEOC letter because exclusion of the
EEOC letter would not have changed the outcome). We are satisfied that the
omission of a Rule 403 analysis did not harm Lewis because the EEOC Closure
Letter was only referenced in passing in a footnote and was not cited elsewhere or
relied upon in the district court’s thorough examination of the evidence. We find
no reversible error in the district court’s decision to overrule Lewis’s hearsay and
prejudice objections to the EEOC Closure Letter.
2. Disparate Treatment Claims:1 The district court granted summary
judgment for Sunrise on all of Lewis’s disparate treatment claims (sex-based,
sexual orientation-based, race-based, and religion-based) because Lewis failed to
raise a triable dispute as to whether Sunrise’s legitimate, non-discriminatory reason
for her termination (failure to adhere to its Respectful Workplace Policy) was
pretext for illegal discrimination. See Freyd v. Univ. of Or., 990 F.3d 1211, 1228
1 Here and for the next two issues raised, the parties agreed that Lewis’s state law claims were governed by the same standard as her federal law claims and analyzed the claims together under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), without separating out each protected characteristic underpinning the claims. We therefore follow suit.
4 24-1879 (9th Cir. 2021). We find no error by the district court as no reasonable juror could
conclude that the adverse employment actions were pretext for unlawful animus
rather than based on Lewis’s failure to adhere to Sunrise’s Respectful Workplace
Policy.
3. Hostile Work Environment Claims: The district court granted
summary judgment in favor of Sunrise on Lewis’s hostile work environment
claims because Lewis failed to raise a triable issue as to whether the negative
interactions that she had with her coworkers and supervisors were because of her
protected characteristics. A hostile work environment claim must have an
underpinning of illegal animus, and Lewis did not produce sufficient evidence for a
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NOT FOR PUBLICATION FILED APR 15 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LAKISHA LEWIS, No. 24-1879 D.C. No. Plaintiff - Appellant, 2:21-cv-00464-CDS-MDC v. MEMORANDUM* SUNRISE HOSPITAL AND MEDICAL CENTER LLC,
Defendant - Appellee.
Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding
Submitted March 31, 2025** Pasadena, California
Before: M. SMITH and VANDYKE, Circuit Judges, and MAGNUS- STINSON, 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 this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jane Magnus-Stinson, United States District Judge for the Southern District of Indiana, sitting by designation. Plaintiff Lakisha Lewis timely appeals the district court’s entry of summary
judgment in favor of her former employer, Defendant Sunrise Hospital and
Medical Center, LLC (Sunrise), in this employment action brought under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Nevada Fair
Employment Practices Act. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing the alleged evidentiary errors for abuse of discretion, Hartzell v.
Marana Unified Sch. Dist., 130 F.4th 722, 734 (9th Cir. 2025), and the grant of
summary judgment de novo, Okonowsky v. Garland, 109 F.4th 1166, 1178 (9th
Cir. 2024), we affirm.
We recite only facts necessary to decide this appeal because the parties are
familiar with the facts and procedural history of the case. Lewis was employed by
Sunrise until she was suspended without pay after several of her coworkers
submitted complaints to Sunrise’s Human Resources Department (HR) regarding
Lewis’s behavior at work. But before the coworkers’ complaints, Lewis submitted
complaints about their behavior at work and alleged that they were discriminating
against her. Lewis’s complaints were investigated and found to be unsubstantiated.
Sunrise then investigated the coworkers’ complaints about Lewis and ultimately
concluded that it should terminate her for a failure to follow its Respectful
Workplace Policy.
2 24-1879 1. Evidentiary Issues: Lewis raises two evidentiary arguments. First, she
argues that the district court erred when it overruled her hearsay objection to
several emails sent by her coworkers to HR complaining about Lewis’s behavior at
work. The emails are not hearsay because they were not offered for their truth
(that Lewis was an unpleasant coworker) but rather were offered to show that
Sunrise received the complaints and that the complaints informed Sunrise’s
decision-making process regarding Lewis’s employment. Fed. R. Evid. 801(c);
Haddad v. Lockheed Ca. Corp., 720 F.2d 1454, 1456 (9th Cir. 1983). The district
court did not abuse its discretion in overruling Lewis’s hearsay objection.
Second, Lewis argues that the district court erred when it overruled her
hearsay and prejudice objections to the Equal Employment Opportunity
Commission’s (EEOC) Closure Letter from the underlying EEOC Complaint that
she filed against Sunrise, which concluded that there were insufficient facts to
continue an investigation. Lewis’s hearsay argument is undeveloped and devoid of
any citation to relevant legal authority and is therefore waived. Badgley v. United
States, 957 F.3d 969, 979 (9th Cir. 2020) (“Arguments made in passing and not
supported by citations to the record or to case authority are generally deemed
waived.”) (quoting United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)). As
to her Rule 403 prejudice objection, we have held that where an EEOC letter
concludes that there are insufficient facts to continue an investigation, the district
3 24-1879 court must “weigh the letter’s prejudicial effect against its probative value pursuant
to Rule 403.” Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir.
1999). The district court did not conduct a Rule 403 analysis, but this was
harmless error. See id. at 1015-16 (finding harmless error when no Rule 403
analysis was conducted before admitting the EEOC letter because exclusion of the
EEOC letter would not have changed the outcome). We are satisfied that the
omission of a Rule 403 analysis did not harm Lewis because the EEOC Closure
Letter was only referenced in passing in a footnote and was not cited elsewhere or
relied upon in the district court’s thorough examination of the evidence. We find
no reversible error in the district court’s decision to overrule Lewis’s hearsay and
prejudice objections to the EEOC Closure Letter.
2. Disparate Treatment Claims:1 The district court granted summary
judgment for Sunrise on all of Lewis’s disparate treatment claims (sex-based,
sexual orientation-based, race-based, and religion-based) because Lewis failed to
raise a triable dispute as to whether Sunrise’s legitimate, non-discriminatory reason
for her termination (failure to adhere to its Respectful Workplace Policy) was
pretext for illegal discrimination. See Freyd v. Univ. of Or., 990 F.3d 1211, 1228
1 Here and for the next two issues raised, the parties agreed that Lewis’s state law claims were governed by the same standard as her federal law claims and analyzed the claims together under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), without separating out each protected characteristic underpinning the claims. We therefore follow suit.
4 24-1879 (9th Cir. 2021). We find no error by the district court as no reasonable juror could
conclude that the adverse employment actions were pretext for unlawful animus
rather than based on Lewis’s failure to adhere to Sunrise’s Respectful Workplace
Policy.
3. Hostile Work Environment Claims: The district court granted
summary judgment in favor of Sunrise on Lewis’s hostile work environment
claims because Lewis failed to raise a triable issue as to whether the negative
interactions that she had with her coworkers and supervisors were because of her
protected characteristics. A hostile work environment claim must have an
underpinning of illegal animus, and Lewis did not produce sufficient evidence for a
reasonable jury to find such an underpinning here. See Sharp v. S&S Activewear,
L.L.C., 69 F.4th 974, 978 (9th Cir. 2023) (“[A] plaintiff bringing a hostile work
environment claim must show discrimination by an employer on account of
membership in a protected group.”). The evidence in the record as to the
workplace environment simply establishes personality conflicts. We find no error
in the district court’s grant of summary judgment to Sunrise on Lewis’s hostile
work environment claims.
4. Retaliation Claims: The district court granted summary judgment in
favor of Sunrise on Lewis’s retaliation claims because she failed to raise a triable
issue as to whether Sunrise’s reason for Lewis’s termination was pretext for
5 24-1879 retaliation. See Kama v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024). Lewis
raises a temporal proximity argument, and in some cases, temporal proximity
between a protected activity and an adverse employment action “can by itself”
establish sufficient evidence of pretext in a retaliation claim. Dawson v. Entek
Int’l, 630 F.3d 928, 937 (9th Cir. 2011). But this is not a case where proximity
establishes pretext. The proximity between Lewis’s complaint to HR and the
adverse actions (suspension and ultimately termination) does not evidence pretext
because, after Lewis’s complaint but before the adverse actions, at least five of
Lewis’s co-workers submitted complaints about her workplace behavior to
Sunrise. Some of these co-workers were outside the group about whom Lewis had
complained. These intervening complaints negate the inference of retaliatory
intent by Sunrise based on Lewis’s complaint. Kama, 107 F.4th at 1059-62 (on a
retaliation claim, finding unpersuasive plaintiff’s temporal proximity pretext
argument where plaintiff’s noncooperation at work was an intervening event
between plaintiff’s protected activity and the employer’s adverse employment
action and was the legitimate, non-discriminatory reason for the adverse action).
We find no error in the district court’s grant of summary judgment to Sunrise on
Lewis’s retaliation claims.
AFFIRMED.
6 24-1879