NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 27 2025
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
MARIBEL ZUNIGA, No. 23-4091 Plaintiff-Appellant, D.C. No. 4:21-cv-00243-JCH v. MEMORANDUM * GOWAN MILLING, LLC, Defendant-Appellee, and LOURDES GONZALEZ; UNKNOWN PARTIES, named as Jane and John Doe 1– 10; ABC Companies 1–10; XYZ Corps. 1– 10; and ABC Partnerships 1–10, Defendants.
Appeal from the United States District Court for the District of Arizona John C. Hinderaker, District Judge, Presiding Argued and Submitted December 3, 2024 San Francisco, California
Before: COLLINS, VANDYKE, and MENDOZA, Circuit Judges.
Plaintiff Maribel Zuniga appeals the district court’s grant of summary
judgment dismissing her claims that her former employer, Defendant Gowan
Milling, LLC (“Gowan”), discriminated against her based on sex, national origin,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and age in violation of federal and state law when Gowan fired her from her job as
a manager in 2020. As Zuniga expressly confirmed at oral argument, her appeal
challenges only the dismissal of her claims for sex discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Arizona
Civil Rights Act, ARIZ. REV. STAT. ANN. §§ 41-1461 to 41-1468. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s summary
judgment de novo, Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034
(9th Cir. 2019), we affirm.
All parties agree that the three-part framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), governs Zuniga’s sex discrimination claims under
federal and Arizona law. Under that framework, (1) the plaintiff must first
“demonstrate[] [her] prima facie case”; (2) then “the burden shifts to the defendant
to provide a legitimate, non-discriminatory reason for the adverse employment
action”; and (3) “[i]f the defendant meets this burden, . . . the plaintiff must then
raise a triable issue of material fact as to whether the defendant’s proffered reasons
are mere pretext for unlawful discrimination.” Reynaga v. Roseburg Forest
Prods., 847 F.3d 678, 691 (9th Cir. 2017) (simplified).
Assuming arguendo that Zuniga has established a prima facie case of sex
discrimination, we conclude that Gowan articulated a legitimate,
nondiscriminatory reason for firing Zuniga, namely, that Gowan concluded, based
2 on information from multiple employees, that Zuniga had engaged in a sustained
pattern of abusive behavior towards her subordinates. One of Zuniga’s
subordinates, Felipe Herrera, complained to a human resources employee that
Zuniga verbally abused him on a daily basis, including yelling and cursing at him,
threatening to fire him, and repeatedly humiliating him in front of his coworkers.
Another employee, Alejandro Perez Leon, also complained that Zuniga routinely
used degrading and profane language in berating employees and that she was
particularly abusive towards Herrera. In an ensuing investigation, Gowan received
additional reports from several other employees corroborating Zuniga’s pattern of
verbally abusive behavior, including complaints that she was creating a “hostile
environment” for employees. Employees also complained that, during the hot
Arizona summer, Zuniga would turn off the workplace air conditioning “for
extended periods of time” because its noise interfered with her talking on the
phone. Because Gowan articulated neutral and legitimate reasons for Zuniga’s
termination, the burden shifts back to her to show that Gowan’s reasons are
pretextual. See Opara v. Yellen, 57 F.4th 709, 726 (9th Cir. 2023).
A plaintiff can prove pretext either “(1) directly, by showing that unlawful
discrimination more likely than not motivated the employer; (2) indirectly, by
showing that the employer’s proffered explanation is unworthy of credence
because it is internally inconsistent or otherwise not believable; or via a
3 combination of these two kinds of evidence.” Opara, 57 F.4th at 723 (simplified).
We conclude that Zuniga failed to present sufficient evidence to raise a triable
issue of pretext.
Zuniga argues that a reasonable inference of pretext arises from Gowan’s
failure to impose similar discipline on male managers who she contends engaged
in comparable behavior. However, Zuniga failed to adduce evidence that those
male managers faced accusations of “problematic conduct of comparable
seriousness to that of [Zuniga].” Vasquez v. County of Los Angeles, 349 F.3d 634,
641 (9th Cir. 2003). Zuniga’s limited evidence concerning the complaints made
against Madin Lopez and Mike Brandt does not remotely suggest a level of
misconduct that could reasonably be viewed as comparable to the scope of the
complaints made against Zuniga. Zuniga also points to evidence concerning a
complaint made against Jerrod Harvick by two employees. 1 Specifically,
Margarita Ruiz, a member of the cleaning staff, testified that on three occasions—
in October 2018, January 2019, and March 2019—Harvick yelled and used foul
language in complaining about Ruiz’s leaving doors open when it was cold. On
one of these occasions, Harvick kicked a door while he was complaining, and on
another, he kicked a trash can. After Zuniga’s termination, a “packaging
1 Harvick’s first name is spelled at least four different ways in the record. We defer to the spelling used in Defendant’s answering brief.
4 employee” complained about a single incident of Harvick yelling and using
“derogatory language” towards him. Although the evidence concerning Harvick is
not as meager as that concerning Lopez and Brandt, it does not support a
reasonable inference that Harvick engaged in the same scope of routine and even
daily abusive conduct towards multiple employees that was asserted against
Zuniga.
Zuniga argues that an inference of discrimination arises from the fact that, in
contrast to the male managers against whom complaints were made, Gowan
quickly moved to fire Zuniga after its investigation and that Gowan did not even
offer her an opportunity to rebut the multiple complaints before terminating her.
But given that, as we have explained, the complaints concerning the other
managers were not of comparable scope or severity, Zuniga needed to point to
some evidence that would support a reasonable inference that Gowan’s swift action
in terminating her was due to sex discrimination rather than to the seriousness of
the complaints against her. See Crowe v. Wormuth, 74 F.4th 1011, 1036 (9th Cir.
2023). She failed to do so.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 27 2025
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
MARIBEL ZUNIGA, No. 23-4091 Plaintiff-Appellant, D.C. No. 4:21-cv-00243-JCH v. MEMORANDUM * GOWAN MILLING, LLC, Defendant-Appellee, and LOURDES GONZALEZ; UNKNOWN PARTIES, named as Jane and John Doe 1– 10; ABC Companies 1–10; XYZ Corps. 1– 10; and ABC Partnerships 1–10, Defendants.
Appeal from the United States District Court for the District of Arizona John C. Hinderaker, District Judge, Presiding Argued and Submitted December 3, 2024 San Francisco, California
Before: COLLINS, VANDYKE, and MENDOZA, Circuit Judges.
Plaintiff Maribel Zuniga appeals the district court’s grant of summary
judgment dismissing her claims that her former employer, Defendant Gowan
Milling, LLC (“Gowan”), discriminated against her based on sex, national origin,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and age in violation of federal and state law when Gowan fired her from her job as
a manager in 2020. As Zuniga expressly confirmed at oral argument, her appeal
challenges only the dismissal of her claims for sex discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Arizona
Civil Rights Act, ARIZ. REV. STAT. ANN. §§ 41-1461 to 41-1468. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s summary
judgment de novo, Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034
(9th Cir. 2019), we affirm.
All parties agree that the three-part framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), governs Zuniga’s sex discrimination claims under
federal and Arizona law. Under that framework, (1) the plaintiff must first
“demonstrate[] [her] prima facie case”; (2) then “the burden shifts to the defendant
to provide a legitimate, non-discriminatory reason for the adverse employment
action”; and (3) “[i]f the defendant meets this burden, . . . the plaintiff must then
raise a triable issue of material fact as to whether the defendant’s proffered reasons
are mere pretext for unlawful discrimination.” Reynaga v. Roseburg Forest
Prods., 847 F.3d 678, 691 (9th Cir. 2017) (simplified).
Assuming arguendo that Zuniga has established a prima facie case of sex
discrimination, we conclude that Gowan articulated a legitimate,
nondiscriminatory reason for firing Zuniga, namely, that Gowan concluded, based
2 on information from multiple employees, that Zuniga had engaged in a sustained
pattern of abusive behavior towards her subordinates. One of Zuniga’s
subordinates, Felipe Herrera, complained to a human resources employee that
Zuniga verbally abused him on a daily basis, including yelling and cursing at him,
threatening to fire him, and repeatedly humiliating him in front of his coworkers.
Another employee, Alejandro Perez Leon, also complained that Zuniga routinely
used degrading and profane language in berating employees and that she was
particularly abusive towards Herrera. In an ensuing investigation, Gowan received
additional reports from several other employees corroborating Zuniga’s pattern of
verbally abusive behavior, including complaints that she was creating a “hostile
environment” for employees. Employees also complained that, during the hot
Arizona summer, Zuniga would turn off the workplace air conditioning “for
extended periods of time” because its noise interfered with her talking on the
phone. Because Gowan articulated neutral and legitimate reasons for Zuniga’s
termination, the burden shifts back to her to show that Gowan’s reasons are
pretextual. See Opara v. Yellen, 57 F.4th 709, 726 (9th Cir. 2023).
A plaintiff can prove pretext either “(1) directly, by showing that unlawful
discrimination more likely than not motivated the employer; (2) indirectly, by
showing that the employer’s proffered explanation is unworthy of credence
because it is internally inconsistent or otherwise not believable; or via a
3 combination of these two kinds of evidence.” Opara, 57 F.4th at 723 (simplified).
We conclude that Zuniga failed to present sufficient evidence to raise a triable
issue of pretext.
Zuniga argues that a reasonable inference of pretext arises from Gowan’s
failure to impose similar discipline on male managers who she contends engaged
in comparable behavior. However, Zuniga failed to adduce evidence that those
male managers faced accusations of “problematic conduct of comparable
seriousness to that of [Zuniga].” Vasquez v. County of Los Angeles, 349 F.3d 634,
641 (9th Cir. 2003). Zuniga’s limited evidence concerning the complaints made
against Madin Lopez and Mike Brandt does not remotely suggest a level of
misconduct that could reasonably be viewed as comparable to the scope of the
complaints made against Zuniga. Zuniga also points to evidence concerning a
complaint made against Jerrod Harvick by two employees. 1 Specifically,
Margarita Ruiz, a member of the cleaning staff, testified that on three occasions—
in October 2018, January 2019, and March 2019—Harvick yelled and used foul
language in complaining about Ruiz’s leaving doors open when it was cold. On
one of these occasions, Harvick kicked a door while he was complaining, and on
another, he kicked a trash can. After Zuniga’s termination, a “packaging
1 Harvick’s first name is spelled at least four different ways in the record. We defer to the spelling used in Defendant’s answering brief.
4 employee” complained about a single incident of Harvick yelling and using
“derogatory language” towards him. Although the evidence concerning Harvick is
not as meager as that concerning Lopez and Brandt, it does not support a
reasonable inference that Harvick engaged in the same scope of routine and even
daily abusive conduct towards multiple employees that was asserted against
Zuniga.
Zuniga argues that an inference of discrimination arises from the fact that, in
contrast to the male managers against whom complaints were made, Gowan
quickly moved to fire Zuniga after its investigation and that Gowan did not even
offer her an opportunity to rebut the multiple complaints before terminating her.
But given that, as we have explained, the complaints concerning the other
managers were not of comparable scope or severity, Zuniga needed to point to
some evidence that would support a reasonable inference that Gowan’s swift action
in terminating her was due to sex discrimination rather than to the seriousness of
the complaints against her. See Crowe v. Wormuth, 74 F.4th 1011, 1036 (9th Cir.
2023). She failed to do so. Zuniga complains that the lack of evidence of a
comparable pattern of conduct with respect to the other managers is itself due to
Gowan’s differential approach to investigating the various cases, and that “[i]t is
likely that other employees, if interviewed, would have provided such evidence”
against the other managers. But a plaintiff resisting summary judgment must point
5 to evidence creating a genuine issue for trial and cannot rely on speculation about
what unpursued lines of inquiry might have shown. See FED. R. CIV. P. 56(c)(1).
Zuniga points to various discrepancies in the details of certain witnesses’
testimony, and she also notes that after she was terminated her job duties were
assigned to a male employee who had worked at Gowan for 12 years. But none of
these points, considered in light of the record as a whole, including the other
evidence discussed above, provides a reasonable basis to infer that Gowan’s
proffered reason for firing Zuniga is false and that Zuniga’s inference of
intentional sex discrimination is correct. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147–48 (2000).
Accordingly, we conclude that Zuniga failed to present sufficient evidence
from which a reasonable jury could find that Gowan did not “honestly believe[] its
reason[s] for its actions” and that Gowan was instead engaged in sex
discrimination. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir.
2002) (citation omitted). We therefore affirm the district court’s grant of summary
judgment.
AFFIRMED.