                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                     MAY 15 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

HELEN CHISOLM, an individual,                   No.   19-55709

            Plaintiff-Appellant,                D.C. No.
                                                3:18-cv-00893-MMA-MDD
v.

7-ELEVEN, INC., a Texas corporation,            MEMORANDUM*

            Defendant-Appellee.

                     Appeal from the United States District Court
                        for the Southern District of California
                     Michael M. Anello, District Judge, Presiding

                               Submitted May 12, 2020**
                                 Pasadena, California

Before: WARDLAW, COOK,*** and OWENS, Circuit Judges.

      Helen Chisolm, an African-American woman in her seventies, worked for 7-

Eleven for over two decades before suffering disabling injuries. During the four



      *
             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 Deborah L. Cook, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
years she then spent on medical leave, 7-Eleven denied her two requests for

promotion and eventually terminated her employment. Chisolm sued for age,

disability, and race discrimination, retaliation, failure to prevent retaliation or

discrimination, and wrongful termination in violation of public policy under

California’s Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940.

The district court granted summary judgment to 7-Eleven on all claims. Chisolm

now appeals on all but her race discrimination claim. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1. We address Chisolm’s appeal on the merits despite the scarcity of record

citations in support of the arguments raised in her opening brief. Federal Rule of

Appellate Procedure 28 requires that an appellant’s opening brief include “citations

to the . . . parts of the record on which the appellant relies[.]” Fed. R. App. P.

28(a)(8)(A). However, because Chisolm supports her Statement of the Case with

ample record references, the “procedural violations were not so egregious as to

prevent [7-Eleven] from meaningfully responding to the appeal[,]” which, here, it

did. Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 997 (9th Cir. 2007). We

therefore proceed to the merits.

      2. The district court did not abuse its discretion by excluding either Chisolm’s

March 2018 email or Fe Demasco’s declaration because Chisolm’s failure to timely

disclose this evidence, as required by Federal Rule of Civil Procedure 26, was not


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substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd. v.

Deckers Outdoor Corp., 259 F.3d 1101, 1105–07 (9th Cir. 2001). The March 2018

email was not produced until the final deposition, after the discovery cut-off, thereby

preventing 7-Eleven from deposing any other witness, including Chisolm, about the

document. The district court’s order permitting the parties to take this deposition

after the discovery cut-off does not justify Chisolm’s late disclosure, and Chisolm is

not excused from her Rule 26 obligations merely because 7-Eleven likely had the

email in its possession.

      Nor was Chisolm’s failure to disclose Fe Demasco as a witness justified or

harmless despite Chisolm’s mention of “Faye” in her initial disclosures and at her

deposition. See Benjamin v. B & H Educ., Inc., 877 F.3d 1139, 1150–51 (9th Cir.

2017) (upholding exclusion of late-disclosed declarations where plaintiff

“mentioned the witness names in an interrogatory response”).

      In addition, Chisolm fails to demonstrate any prejudice was caused by the

exclusion of the March 2018 email or Fe Demasco’s declaration. Id. at 1151.

      3. The district court did not err by granting summary judgment on Chisolm’s

FEHA failure to accommodate claim, Cal. Gov’t Code § 12940(m). Chisolm

foreclosed any argument that 7-Eleven could have accommodated her in her Field

Consultant position by her concession in her deposition that she could no longer

perform its essential functions and that she needed to be reassigned. Her claim thus


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depends on the availability of reassignment positions. “[A]n employer can prevail

on summary judgment on a claim of failure to reasonably accommodate by

establishing through undisputed facts that there simply was no vacant position within

the employer’s organization for which the disabled employee was qualified and

which the disabled employee was capable of performing with or without

accommodation.” Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 378 (2015)

(internal quotation marks omitted); see also Spitzer v. Good Guys, Inc., 80 Cal. App.

4th 1376, 1389 (2000) (“[A]n employer is relieved of the duty to reassign a disabled

employee . . . if there is no vacant position for which the employee is qualified.”).

      7-Eleven met this burden. Chisolm failed to raise a genuine dispute that any

non-promotional positions for which she was qualified were available at the time her

employment was terminated, or that any such positions were reasonably likely to

become available after another finite extension of her medical leave. Nealy, 234

Cal. App. 4th at 377–78. Accordingly, 7-Eleven is entitled to summary judgment

on this claim.

      4. The district court did not err by granting summary judgment on Chisolm’s

FEHA disability discrimination claim, Cal. Gov’t Code § 12940(a). As to Chisolm’s

discharge, “FEHA permit[s] the [employer] to discharge [an employee] if he was

unable to perform the essential functions of his job even with reasonable

accommodations.” Nealy, 234 Cal. App. 4th at 378. Even assuming, without


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deciding, that Chisolm had direct evidence of disability discrimination, Chisolm

cannot prevail unless there were reasonable accommodations available that would

have allowed her to perform the essential functions of the position. Id.; Wallace v.

Cty. of Stanislaus, 245 Cal. App. 4th 109, 123 (2016).          Chisolm’s disability

discrimination claim therefore fails for the same reasons as her reasonable

accommodation claim.

      Chisolm also fails to raise a genuine dispute that 7-Eleven’s decisionmaker,

Jeffrey Tucker, refused to hire her for the Senior Real Estate Representative (SRER)

position—a promotion from her Field Consultant job—because of her disability.

None of the evidence in the record suggests that 7-Eleven lied about a hiring freeze

to avoid Chisolm’s first application for an SRER position. Cf. Abed v. W. Dental

Servs., Inc., 23 Cal. App. 5th 726, 741 (2018) (explaining that “[e]mployers who lie

about the existence of open positions” may be liable for discrimination). In addition,

neither Tucker nor his colleague ever declared that Chisolm’s disability influenced

Tucker’s decision not to hire her after she interviewed for the SRER position.

Rather, one of Chisolm’s answers—that she wanted to be an SRER so she could

“just sit in a car and count cars at intersections”—concerned Tucker, as did “her

beating around the bush on questions and not answering them directly.” Chisolm

fails to adduce evidence to create a genuine dispute that she had similar, let alone

superior, qualifications and interview performance to the woman chosen for the


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position. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1159–60 (9th Cir.

2010).

      5. The district court did not err by granting summary judgment on Chisolm’s

FEHA interactive process claim, Cal. Gov’t Code § 12940(n). “To prevail on a

claim for failure to engage in the interactive process, the employee must identify a

reasonable accommodation that would have been available at the time the interactive

process occurred.” Nealy, 234 Cal. App. 4th at 379. This claim therefore fails for

the same reason as Chisolm’s reasonable accommodation and disability

discrimination claims.

      6. The district court did not err by granting summary judgment on Chisolm’s

claim that 7-Eleven failed to promote her because of her age. Chisolm failed to raise

a triable issue as to whether she “suffered an adverse employment action . . . under

circumstances that give rise to an inference of unlawful discrimination[.]” Sandell

v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321 (2010). Although 7-Eleven hired

a younger woman, Bobbie King, for the SRER position, Chisolm submits only her

own speculation that King was less qualified for the role. Loomis v. Cornish, 836

F.3d 991, 997 (9th Cir. 2016) (“[M]ere allegation and speculation do not create a

factual dispute for purposes of summary judgment.” (quoting Nelson v. Pima Cmty.

Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996))). Chisolm’s assertion that 7-Eleven

repeatedly promoted Tucker (then in his thirties) without promoting her likewise


                                        -6-
fails to create a triable issue. Chisolm points to no position that Tucker received

over her due to age considerations. See Sandell, 188 Cal. App. 4th at 321. Finally,

Chisolm’s evidence of “ageist comments” made by her former supervisor fall

outside the one-year limitations period on Chisolm’s claim. McDonald v. Antelope

Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 106 (2008).

      7. Assuming, without deciding, that a “multi-factor” FEHA discrimination

claim exists, it would fall with Chisolm’s disability and age discrimination claims.

      8. The district court did not err by granting summary judgment on Chisolm’s

claim that 7-Eleven refused to hire her for the SRER position and terminated her

employment in retaliation for Chisolm’s complaints of discrimination, Cal. Gov’t

Code § 12940(h). To survive summary judgment on a FEHA retaliation claim,

Chisolm must establish a triable issue that there is a “causal link” between her

protected activity and an adverse employment action. Vasquez v. Cty. of Los

Angeles, 349 F.3d 634, 646 (9th Cir. 2003). Tucker’s testimony that he heard a

“rumor” related to a class action lawsuit Chisolm had filed two years before her

SRER interview cannot establish retaliation absent “surrounding circumstances that

show a retaliatory motive.” Id. (finding no causal link where the protected activity

occurred thirteen months before the adverse action). As the district court found,

Chisolm failed to proffer evidence of any such circumstances.            As for her

termination, Chisolm failed to produce any evidence that 7-Eleven had knowledge


                                        -7-
of her discrimination complaint before her discharge. Cornwell v. Electra Cent.

Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (finding no question of fact as to

the required “causal link” absent evidence of employer’s awareness of protected

activity).

       9. Chisolm concedes that her remaining claims for wrongful termination,

failure to prevent discrimination or retaliation, and punitive damages fall with her

other claims.

       AFFIRMED.




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