                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 20 2009

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




                              FOR THE NINTH CIRCUIT



DIANA HEILMAN,                                    No. 08-16705

                Plaintiff - Appellant,            D.C. No. 3:04-cv-00683-LRH-
                                                  VPC
  v.

MICHAEL J. MEMEO; STATE OF                        MEMORANDUM *
NEVADA; JAMES WATSON,

                Defendants - Appellees.



                      Appeal from the United States District Court
                               for the District of Nevada
                       Larry R. Hicks, District Judge, Presiding

                             Submitted November 6, 2009 **
                               San Francisco, California


Before:         NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, ***
                District Judge.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
          ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Diana Heilman appeals from the district court’s grant of summary judgment

on her claims of sex and age discrimination and breach of contract. In the district

court, Heilman challenged the termination of her employment, alleging that her

employer discriminated against her on the basis of sex and age, breached her

employment contract by failing to comply with the pre-termination procedures set

forth in Nevada Revised Statutes § 62.110, and violated other provisions of federal

and state law. After dismissing some claims, the district court granted summary

judgment to defendants on all remaining claims. We have jurisdiction under 28

U.S.C. § 1291. We reverse as to Heilman’s breach of contract claim and remand

for further proceedings on that claim, and affirm as to all other claims.

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

v. Am. Online Inc., 578 F.3d 995, 1000 (9th Cir. 2009). We view the evidence in

the light most favorable to the nonmoving party to determine whether any genuine

issues of material fact exist and whether the district court correctly applied the

relevant substantive law. Id.

      Heilman resigned from her employment. To prevail on any of her claims,

Heilman must prove that she was terminated. For purposes of Heilman’s federal

claims, a resignation may be involuntary (and therefore qualify as a constructive

termination) if a reasonable person in the employee’s position would have felt


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coerced into resigning and deprived of free choice in the matter, whether or not

intolerable working conditions were at issue. Knappenberger v. City of Phoenix,

566 F.3d 936, 940-41 (9th Cir. 2009). For purposes of her state law claims,

Nevada caselaw similarly provides that a jury may conclude that an involuntary

resignation is equivalent to a termination. See Beales v. Hillhaven, Inc., 825 P.2d

212, 214, 216-17 (Nev. 1992) (implicitly approving trial court’s decision to permit

a plaintiff who resigned her position under the threat of termination to pursue a

wrongful discharge claim).

      Heilman has created an issue of fact as to whether her resignation was

voluntary. Heilman’s supervisor demanded her resignation, and she complied.

Her supervisor did not give her an alternative option nor the ability to select the

timing of her resignation. See Knappenberger, 566 F.3d at 941. For purposes of

summary judgment, there is sufficient evidence from which a jury could find that

Heilman was terminated. We therefore proceed to an analysis of Heilman’s claims

stemming from her termination.

      The district court determined that Heilman’s breach of contract claim failed

because she was an at-will employee. While we agree that she was an at-will

employee, Heilman’s appointment letter and Nevada law provided that she could

only be terminated in accordance with Nevada Revised Statutes § 62.110. We hold


                                           3
that the provisions of the appointment letter, signed by both Heilman and her

employer, are enforceable as a matter of contract. The letter provided in

mandatory language that Heilman could be terminated “only after having been

given the reasons therefore in writing and being afforded an opportunity to be

heard before the judge in answer thereto.” See Nev. Rev. Stat. § 62.110 (Michie’s

2002) (repealed 2004); Hampton v. Wartman, 455 P.2d 921, 922 (Nev. 1969).

      It is undisputed that Heilman’s employer failed to follow these procedures.

While neither the contract nor state statute required Heilman’s employer to have

“cause” to dismiss her, she was nevertheless entitled to have the enumerated

procedures followed. See Hampton, 455 P.2d at 922. Accordingly, we reverse the

grant of summary judgment on this claim and remand for further proceedings.

      We affirm the district court’s grant of summary judgment on Heilman’s Title

VII sex discrimination and Age Discrimination in Employment Act (ADEA)

claims. For purposes of our analysis, we assume without deciding that the personal

staff exemptions in Title VII and the ADEA do not apply to Heilman’s claims. We

also assume without deciding that Heilman did not abandon her sex discrimination

and age discrimination claims, either before the district court or on appeal.

      Heilman’s sex discrimination claim against defendants Memeo and Watson

in their individual capacities fails because a supervisor cannot be held liable in his


                                           4
individual capacity for violating Title VII. See Ortez v. Wash. County, 88 F.3d

804, 808 (9th Cir. 1996). Her claim against the other defendants fails because she

has not made out a prima facie case.

      To make out a prima facie case of sex discrimination, a plaintiff must

ordinarily show that: (1) she belonged to a protected class; (2) she was qualified

for her job; (3) she was subjected to an adverse employment action; and (4)

similarly situated employees not in her protected class received more favorable

treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006). A plaintiff may also

establish a prima facie case by “providing direct evidence suggesting that the

employment decision was based on an impermissible criterion.” EEOC v. Boeing

Co., 577 F.3d 1044, 1049 (9th Cir. 2009).

      Heilman has not shown that similarly situated individuals outside her

protected class were treated more favorably. See Moran, 447 F.3d at 753. She

contends that she need not produce such evidence because her employer

discriminated against her pursuant to an unwritten policy that only applied to

women and embodied invidious sex stereotypes. See Gerdom v. Continental

Airlines, Inc., 692 F.2d 602, 606, 608 (9th Cir. 1982) (en banc); see also Sassaman

v. Gamache, 566 F.3d 307, 313 (2d Cir. 2009) (“When employment decisions are

based on invidious sex stereotypes, a reasonable jury could infer the existence of


                                          5
discriminatory intent.”). While evidence of such a policy could be sufficient to

make out a prima facie case of sex discrimination, Heilman has failed to offer facts

in support of her contentions.

      Heilman’s age discrimination claim similarly fails. Heilman’s age

discrimination claim against defendants Memeo and Watson in their individual

capacities fails because a supervisor cannot be held liable in his individual capacity

for violating the ADEA. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88

(9th Cir. 1993). Her claim against the Fourth Judicial District Court fails because

the court is immune from suit under the ADEA as an instrumentality of the state.

See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67, 91 (2000).

      To make out a prima facie case of age discrimination, a plaintiff must show

that: (1) she was at least forty years old; (2) she was performing her job

satisfactorily; (3) her employment was terminated; and (4) she was replaced by a

substantially younger employee with equal or inferior qualifications or discharged

under circumstances otherwise giving rise to an inference of age discrimination.

Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

      Assuming that defendants Memeo and Watson can be held liable for

violation of the ADEA in their official capacities and therefore be subject to

injunctive relief, her claim against them fails because she has not introduced any


                                           6
evidence showing that her replacement had equal or inferior qualifications. See id.

at 1207 & n.2.

      Accordingly, we affirm the district court’s grant of summary judgment on

Heilman’s Title VII and ADEA claims.

      To the extent Heilman raises any other challenges to the district court’s grant

of summary judgment, those challenges also fail. We reverse the district court’s

grant of summary judgment on the breach of contract claim and affirm the grant of

summary judgment as to all other claims.

      AFFIRMED in part, REVERSED in part and REMANDED for further

proceedings. Costs to appellant.




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