                                                                              FILED
                           NOT FOR PUBLICATION                                APR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARGARET BRANSCOMB,                              No. 11-15067

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01328-JAT

  v.
                                                 MEMORANDUM*
GROUP USA, INC., a New Jersey
corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                           Submitted February 15, 2012*
                             San Francisco, California

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

       Plaintiff Margaret Branscomb (“Branscomb”) appeals the district court’s

grant of summary judgment in favor of her former employer, Group USA, Inc.

(“Group USA”), on her claims of race discrimination under Title VII and 42

U.S.C. § 1981, age discrimination under the Age Discrimination in Employment


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Act (ADEA), 29 U.S.C. § 623, and perceived disability discrimination under the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12112. We affirm the district

court’s judgment as to Branscomb’s age and perceived disability claims. As to

Branscomb’s race discrimination claim, we reverse.

      We review de novo the district court’s grant of summary judgment. Cline v.

Indus. Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 2000).

Applying the burden-shifting analysis under McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), we conclude that Branscomb presented sufficient evidence to

raise a triable issue of fact as to whether Miller’s decision to terminate her was

pretextual.1




      1
        We reject Branscomb’s contention that the district court improperly
admitted statements in Miller’s affidavit indicating that she received reports from
her subordinates that Branscomb’s performance was sub-par. Miller’s statements
were not offered to prove that Branscomb in fact performed deficiently. Rather,
the statements reveal Miller’s state of mind, and Group USA offered them in
support of its assertion that it terminated Branscomb for legitimate business
reasons. This is a permissible purpose. See Fed. R. Evid. 801; Jones v. Los
Angeles Comty. Coll. Dist., 702 F.2d 203, 205 (9th Cir. 1983). We likewise reject
Branscomb’s argument that the district court erred by declining to sanction Group
USA for destroying bridal receipts which could, potentially, have contained
customers’ positive comments about Branscomb’s alterations. Branscomb has
offered no evidence that Group USA regularly retained bridal receipts, nor that
Group USA was aware that Branscomb’s receipts might prove relevant to a
subsequent discrimination claim. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958
(9th Cir. 2006).

                                          2
      Branscomb presented evidence that Flores was less qualified for the

alterationist position and performed in an inferior manner. Specifically, Flores’s

employment application lists no relevant work experience. Sandra Williams, who

worked as a bridal consultant for Group USA during the relevant time period,

testified that Flores’s work product was inferior to Branscomb’s, that at least one

third of brides preferred Branscomb’s work over Flores’s, and that Flores could not

communicate with her clients because she did not speak English.

      Williams further testified that management, including store managers

Claudia Bojorquez and Alma Cervantes, treated Branscomb differently than other

employees by assigning her different tasks and treating her disrespectfully.

Branscomb likewise testified that Cervantes and Bojorquez treated her in a

“demeaning” and “confrontational” manner. Williams opined that Cervantes and

Bojorquez preferred working with Flores because, like them, she is Hispanic and

Spanish-speaking. Williams also testified that, on one occasion, Bojorquez told

her that management was “going to get rid of Margaret and get Maria in here.”

      Although Miller made the ultimate decision to fire Branscomb, there are

disputed issues of fact as to whether and to what extent Cervantes and Bojorquez




                                          3
influenced Miller’s decision.2 Accordingly, under a “cat’s paw” theory of liability,

this evidence raises triable issues as to whether Branscomb’s termination was mere

pretext for race discrimination. See Poland v. Chertoff, 494 F.3d 1174, 1182 (9th

Cir. 2007). Viewing the evidence in the light most favorable to Branscomb and

drawing all reasonable inferences in her favor, the evidence is sufficient to

overcome the “strong inference,” raised by Branscomb’s hiring and firing by the

same personnel within a relatively short period of time, that Group USA acted

without discriminatory intent. See Bradley v. Harcourt, Brace and Co., 104 F.3d

267, 270-71 (9th Cir. 1996).

      Branscomb failed to raise genuine triable issues of fact as to her age and

perceived disability discrimination claims, however. Miller’s comment that

Branscomb was “burned out,” is not overtly age-related. Moreover, Flores, like

Branscomb, was a member of the protected class under the ADA at the time of

Branscomb’s termination, minimizing any inference of age discrimination.

      Likewise, the record contains no evidence that Group USA believed

Branscomb was substantially limited in a major life activity. Indeed, following her

medical leave, she was permitted to return to work, completing the same tasks as

      2
         The record also reveals disputed issues of fact as to whether and to what
extent Cervantes and Bojorquez influenced Miller’s decision to hire Branscomb
initially.

                                          4
she undertook before her surgery. Nor has Branscomb produced evidence that the

disability she asserts Group USA believed her to have—“diagnosed with a

pituitary tumor and had surgery”—was actually a limitation on a major life

activity. To the contrary, she testified that, following her return to work, her

medical condition did not impact her ability to complete her work responsibilities

“at all.” See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1006 (9th. Cir. 2007);

see also Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996)

(holding that temporary injuries with minimal lasting effects are not generally

disabilities actionable under the ADA).

      Accordingly, Branscomb has failed to adduce “specific, substantial evidence

of pretext” as to her age and perceived disability discrimination claims. See

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000).

      For these reasons, the district court’s grant of summary judgment is affirmed

as to Branscomb’s age and perceived disability discrimination claims, and reversed

and remanded for further proceedings as to her race discrimination claim. The

parties shall bear their own costs on appeal.

      AFFIRMED in part; REVERSED in part and REMANDED.




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