                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             NOV 13 2009

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

HEIDI HAMILTON,                                 No. 08-17353

             Plaintiff - Appellant,             D.C. No. 2:06-cv-00235-RCJ-LRL

  v.
                                                MEMORANDUM *
SEARS ROEBUCK AND COMPANY,
DBA The Great Indoors,

             Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                     Argued and Submitted November 4, 2009
                            San Francisco, California

Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, ** District
Judge.

       Heidi Hamilton (“Hamilton”) appeals the adverse summary judgment grant for

both her Title VII sex discrimination and retaliatory termination claims against The


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
Great Indoors (“TGI”), a division of Sears, Roebuck and Co., arguing genuine issues

of material fact as to whether she established a prima facie case. She also appeals the

district court’s order on her ERISA claim, in which the court found for her but

declined to issue statutory penalties or her counsel’s costs and fees.

      A. Gender Discrimination

      We review de novo a grant of summary judgment and apply the same standard

used by the district court. Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th

Cir. 1995). “The court must not weigh the evidence or determine the truth of the

matters asserted but only determine whether there is a genuine issue for trial.”

Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994).

      Hamilton has failed to establish a material issue of fact as to discrimination.

She has not alleged any statements or actions “prov[ing] the fact of discriminatory

animus without inference or presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d

1090, 1095 (9th Cir. 2005) (internal quotations, citations, and alterations omitted).

      She has not raised indirect evidence “showing that the employer’s proffered

explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise

not believable.” Fonseca v. Sysco Food Serv. of Ariz., Inc., 374 F.3d 840, 849 (9th

Cir. 2004) (quoting Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002)).




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      Hamilton’s own claims and her former colleague, Irma Hill’s, statements allege

a different standard for Hamilton and other managers, and Hamilton infers her gender

explains this variance. However, TGI demonstrated legitimate, nondiscriminatory

reasons for Hamilton’s termination – a consistent pattern of poor management and

performance reviews dating back to within weeks of her hiring.

      Nor can Hamilton show TGI’s response “unworthy of credence” when she

received negative performance appraisals within weeks of beginning her job. Her

statements reflect Davidson’s impression of her performance. Neither of the other

two female managers under Davidson’s supervision received reduced bonuses (one

was promoted), and Hamilton cannot point to male managers rewarded for

substandard performance, conceding “they were doing a good job.”

      B. COBRA Damages

      An ERISA plan administrator “may in the court’s discretion be personally liable

to . . . [a] participant or beneficiary in the amount of up to” $110 per day running from

the date of a “failure or refusal” to notify a recipient of her COBRA benefits, “and the

court may in its discretion order such other relief as it deems proper.” 29 U.S.C. §

1132(c)(1)(A); 29 C.F.R. § 2575.502c-1.

      The district court did not abuse its discretion. The court’s order left open the

possibility Hamilton could have recovered had she been able to show her actual


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damages. This comports with § 1132(c)(1)(A)’s primary purpose, to compensate

victims for damages due to lack of notification, see Stone v. Travelers Corp., 58 F.3d

434, 438-39 (9th Cir. 1995), and Hamilton does not allege any benefit to TGI, thus

removing the need for a recovery for a deterrence purpose.

      C. Attorneys’ Fees and Costs

      Under ERISA, “reasonable attorney’s fee and costs” are awardable “in the

court’s discretion” to either party. 29 U.S.C. § 1132(g). The denial of attorneys’ fees

is reviewed for an abuse of discretion. See Honolulu Joint Apprenticeship & Training

Comm. v. Foster, 332 F.3d 1234, 1240 (9th Cir. 2003) [Honolulu]. In Hummell v. S.E.

Rykoff & Co., 634 F.2d 446 (9th Cir.1980), we explained the five factors guiding

district courts in the decision to award or deny fees, see Honolulu, 332 F.3d at 1240,

and a decision denying fees will be set aside if the district court “failed to state the

reasons for its decision.” Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th

Cir. 1984) (citations omitted).

      The district court failed to consider the Hummell factors, stating only it “denies

fees and costs,” without providing any analysis. Because such consideration did not

occur, and “a prevailing participant or beneficiary ‘should ordinarily recover an

attorney’s fee unless special circumstances would render such an award unjust,’”

Honolulu, 332 F.3d at 1239 (quoting Smith, 746 F.2d at 589), we vacate and remand


                                           4
on this issue for the district court to consider the Hummell factors in determining fees

and costs on the COBRA claim. On all other issues we affirm.

      AFFIRMED in Part; VACATED and REMANDED in Part. Each party to

bear its own costs on appeal.




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