                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 25 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL DRUMM,                                   No. 09-17572

              Plaintiff - Appellant,             D.C. No. 3:08-cv-03362-TEH

  v.
                                                 MEMORANDUM *
MORNINGSTAR, INC.,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
              Thelton E. Henderson, Senior District Judge, Presiding

                     Argued and Submitted February 18, 2011
                            San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**

       Michael Drumm appeals the district court’s grant of summary judgment with

respect to his discrimination claim on the basis of sexual orientation. Drumm,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
however, failed to establish a prima facie case of discrimination because he failed

to show that “he was performing competently in the position he held.” Guz v.

Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355 (2004). The evidence shows that

Drumm acted unprofessionally in his relationship with two of his employer’s major

clients and that both clients expressed their discontent with Drumm’s performance.

Drumm failed to submit specific facts that would create a genuine issue of material

fact as to the quality of his performance or the reasons for his termination. Fed. R.

Civ. P. 56(c).

      AFFIRMED.




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