                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 23 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEPHANIE CHARLES,                               No.   15-56553

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-08441-GW-VBK
 v.

ABERCROMBIE & FITCH STORES,                      MEMORANDUM*
INC.,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                       Argued and Submitted March 7, 2017
                              Pasadena, California

Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.

      Stephanie Charles appeals the district court’s grant of summary judgment in

favor of defendant Abercrombie & Fitch Stores, Inc., on her claims for pregnancy

discrimination and retaliation under the California Fair Employment and Housing




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Act (“FEHA”), and for wrongful termination in violation of public policy. We

affirm.

      1. Charles has presented neither direct nor circumstantial evidence sufficient

to raise a triable issue of fact as to whether Abercrombie & Fitch acted with

discriminatory intent when it terminated Charles as part of a reduction-in-

workforce.

      The notation, on the lists of District Managers recommended for

termination, indicating that Charles was on maternity leave is not “evidence which,

if believed, proves the fact [of discriminatory animus] without inference or

presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)

(alteration in original) (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085

(5th Cir. 1994)). Abercrombie & Fitch representatives explained that the company

noted employee maternity leave status, and other protected characteristics, to

ensure that the reduction-in-workforce did not adversely impact any protected class

of employees and because leave status was relevant to the details of any severance

agreement. Also, some managers whose names appeared on the possible

termination list and were marked “M,” for maternity leave, were not terminated,

indicating that the marking was not connected to the termination decision.




                                          2
      2. Charles has provided insufficient circumstantial evidence to raise a

triable issue of fact as to whether Abercrombie & Fitch’s proffered reasons for her

termination as part of the reduction in workforce are pretext for unlawful

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973); Guz v. Bechtel Nat’l. Inc., 24 Cal. 4th 317, 354–56 (2000). Abercrombie

& Fitch maintains that it selected Charles for termination in the reduction-in-

workforce because of her relative poor performance and potential for growth at the

company among District Managers, and because the density of District Managers

in the Los Angeles region required a reduction in the number of such managers.

Assuming Charles established a prima facie case of discrimination, she has not met

her burden of demonstrating pretext either by showing “that unlawful

discrimination more likely than not motivated” Abercrombie & Fitch, or “that the

employer’s proffered explanation is unworthy of credence because it is internally

inconsistent or otherwise not believable.” Earl v. Nielsen Media Research, Inc.,

658 F.3d 1108, 1112–13 (9th Cir. 2011).1




      1
         Charles’ argument that the district court applied the wrong burden of proof
lacks merit. The district court noted that Abercrombie & Fitch had produced
“relatively abundant” evidence regarding its reasons for noting Charles’ maternity
status, and did not improperly weigh the evidence provided by the parties.
                                           3
      The maternity notation next to Charles’ name is not circumstantial evidence

of discrimination. As discussed above, Abercrombie representatives explained the

notation’s relevance for human resources purposes. The absence of any evidence

that Abercrombie & Fitch used statistical analyses to assess the impact of the

reduction-in-workforce on employees on maternity leave does not suggest

discriminatory intent, as Charles was the only employee on maternity leave

ultimately terminated.

      Next, Regional Manager Andrea Ahlers’s and Human Resources

representative Scott Sterlings’s statements to Charles that she was not terminated

because of poor performance were consistent with the fact that Charles was not

among the five employees who were terminated strictly for cause. Ahlers and

Sterling did not themselves suggest Charles for termination or make the ultimate

reduction-in-workforce decisions. Although Charles’s poor performance relative

to the other District Managers was part of the explanation for her termination

provided in this litigation, Ahlers’s and Sterling’s failure to so inform Charles does

not raise a triable issue of fact as to whether the company’s performance criteria

was pretextual. “[A]n inference of intentional discrimination cannot be drawn

solely from evidence, if any, that the company lied about its reasons. The pertinent




                                           4
statutes do not prohibit lying, they prohibit discrimination.” Guz, 24 Cal. 4th at

360-61.

         Likewise, Abercrombie & Fitch’s termination of Kristen Netschke, Charles’s

last supervisor, does not negate the fact that Charles’s performance reviews and

other personnel materials, as Charles acknowledged, reflected Charles’s declining

and relative poor performance compared to other District Managers in her region.

Charles’s other arguments regarding evidence of pretext are similarly unavailing.2

         For these reasons, we affirm the district court’s grant of summary judgment

in favor of Abercrombie & Fitch on Charles’s FEHA pregnancy discrimination

claim.

         3. Charles’s claim for wrongful termination in violation of public policy is

derivative of her FEHA pregnancy discrimination claim, so also fails. See Turner

v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256 (1994).

         4. For the reasons stated above, assuming Charles established a prima facie

case of retaliation, the evidence presented also does not raise a triable issue of fact

as to whether Abercrombie & Fitch’s proffered reasons for Charles’ termination

         2
        We decline to consider Charles’s argument that Derek Kaufman was a
similarly situated employee who was treated more favorably than Charles. Charles
did not raise the issue before the district court, so the factual record as to why he
was retained was not developed. See United States v. Mi Kyung Byun, 539 F.3d
982, 987 (9th Cir. 2008).

                                            5
were pretext for retaliation in violation of FEHA. See Jordan v. Clark, 847 F.2d

1368, 1376 (9th Cir. 1988) (providing that retaliation claims under FEHA based on

circumstantial evidence are examined under the three stage McDonnell Douglas

burden shifting framework).

      AFFIRMED.




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