                                                                           FILED
                               NOT FOR PUBLICATION                          DEC 30 2009

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




                               FOR THE NINTH CIRCUIT

 ANNA VALLEE SWAN,                                       No. 08-16889

             Plaintiff - Appellant,                      D.C. No. 2:07-cv-00217-PMP-
                                                         LRL
  v.
                                                         MEMORANDUM *
 BANK OF AMERICA,

            Defendant - Appellee.




                       Appeal from the United States District Court
                                for the District of Nevada
                         Philip M. Pro, District Judge, Presiding

                         Argued and Submitted December 9, 2009
                                San Francisco, California

Before: COWEN,** GRABER and BYBEE, Circuit Judges.




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
       **
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
      Anna Vallee Swan, a former employee of Bank of America (“BOA”),

appeals an order granting summary judgment in BOA’s favor, disposing of her

discrimination, retaliation, and slander claims. Swan contends that the district

court erred in holding that Swan failed to: (i) establish a prima facie case of

discrimination under the Age Discrimination in Employment Act (“ADEA”),

(ii) establish that BOA’s justification for her termination was pretext for

discriminatory animus, (iii) timely file her Nevada discrimination claims,

(iv) establish a claim under the Family and Medical Leave Act (“FMLA”), and

(v) establish a claim for slander under Nevada law. We affirm.

I.    STANDARD OF REVIEW

      This court reviews de novo a district court’s grant of summary judgment.

Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). Summary judgment is

inappropriate if reasonable jurors, drawing all inferences in favor of the

nonmoving party, could return a verdict in the nonmoving party’s favor. United

States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999).

II.   DISCUSSION

      A.     Swan’s ADEA Discrimination Claim

      The district court properly concluded that Swan’s ADEA discrimination

claim lacked merit. To establish a prima facie claim of discrimination under the



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ADEA, an employee must demonstrate that she is (1) at least forty years old, (2)

performed her job satisfactorily, (3) was discharged, and (4) either 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) (quoting

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). “The requisite

degree of proof necessary to establish a prima facie case for . . . ADEA claims on

summary judgment is minimal and does not even need to rise to the level of a

preponderance of the evidence.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090,

1094 (9th Cir. 2005) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.

1994)).

      Swan failed to establish the second element—that she performed her job

satisfactorily. Early in her tenure with BOA, Swan received written warnings on

three occasions indicating that if she did not improve her performance she risked

termination. Additional evaluations in her personnel file indicate that throughout

her tenure with BOA she performed satisfactorily with respect to certain tasks and

poorly with respect to other tasks. Indeed, in 2005, she received written

notifications of performance deficiencies and warnings of potential termination in

February, June, and November. Despite these warnings and additional efforts by


                                          3
BOA, Swan continued to perform poorly and, ultimately, was terminated for poor

performance.

      Moreover, the district court properly concluded that Swan failed to establish

pretext. An employee may demonstrate pretext “‘either directly by persuading the

court that a discriminatory reason likely motivated [an employer] or indirectly by

showing that [an employer’s] proffered explanation is unworthy of credence.’”

Diaz, 521 F.3d at 1212 (quoting Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d

1080, 1093-94 (9th Cir. 2001)). At this stage, the employee must produce

“specific, substantial evidence of pretext.” Coleman, 232 F.3d at 1282.

      BOA asserted that it terminated Swan for poor performance. Swan’s

allegations of stellar performance are insufficient to survive summary judgment.

For example, Swan asserts that BOA paid her discretionary, merit-based bonuses

in 2005 and that payment of these bonuses refutes BOA’s justification of poor

performance. Notably, there is nothing in the record to support these assertions

and Swan cannot defeat summary judgment with mere conclusory allegations. See

Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Further,

during her deposition, Swan conceded that she had no reason to believe that the

BOA officer who made the decision to terminate her (who also was a member of

her protected class) terminated her on the basis of her age.


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      B.     Swan’s State-law Discrimination Claim

      The district court properly concluded that Swan’s state-law discrimination

claims were time-barred. Under Nevada law, “[n]o action . . . may be brought

more than 180 days after the date of the act complained of.” Nev. Rev. Stat.

§ 613.430. BOA terminated Swan on December 30, 2005, which started the clock

for the statute of limitations. Swan filed a complaint with the Nevada Equal Rights

Commission (“NERC”) on June 27, 2006, which was 178 days after her

termination. NERC issued a right-to-sue letter to Swan on November 24, 2006.

Swan then waited approximately ninety days before filing her federal complaint.

The statute of limitations tolled during the pendency of her complaint before the

NERC. See id. (“When a complaint is filed with the [NERC] the limitation

provided by this section is tolled as to any action authorized by NRS 613.420

during the pendency of the complaint before the Commission.”). However, her

state-law discrimination claims are untimely by approximately eighty-eight days.

      C.     Swan’s FMLA Claim

      The district court properly granted summary judgment in BOA’s favor on

Swan’s FMLA claim. To prevail on an FMLA interference claim, a plaintiff must

establish “by a preponderance of the evidence that her taking of FMLA-protected

leave constituted a negative factor in the decision to terminate her.” Bachelder v.

                                          5
Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). The gist of Swan’s

claim is that she had a “stellar” employment history and that BOA began targeting

her with frivolous disciplinary measures only after she gave notice of her intent to

take FMLA-related leave. The record belies this assertion as there is ample

documentation of her performance problems long before she gave notice of her

intent to take FMLA-related leave.

      Even if we were to look only at what transpired after her return from leave,

Swan cannot establish that her termination is causally related to her leave. Swan

offered temporal proximity as a means of establishing causation. However, BOA

terminated Swan four months after her return from leave, which is too remote in

time to support a finding of causation premised solely on temporal proximity. See

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)

(explaining in the context of a Title VII claim that “cases that accept mere temporal

proximity between an employer’s knowledge of protected activity and an adverse

employment action as sufficient evidence of causality to establish a prima facie

case uniformly hold that the temporal proximity must be ‘very close’”); cf.

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (stating

that “causation can be inferred from timing alone where an adverse employment

action follows on the heels of protected activity”). Further, an employer is not


                                          6
required to cease pursuing a disciplinary course of action against an employee that

began before that employee took FMLA-related leave, simply because that

employee took leave.

      D.     Swan’s Slander Claim

      The district court properly granted summary judgment in BOA’s favor on

Swan’s slander claim. A statement is not defamatory “if it is absolutely true, or

substantially true.” Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 88 (Nev. 1993).

This claim arises out of Swan’s alleged request to transfer to a Texas branch office

and a corresponding background check, which resulted in the Texas branch

denying her transfer request. Swan contends that her supervisor slandered her

when her supervisor told the Texas human resources department that Swan was on

“final written warning” status. Contrary to Swan’s assertion, the alleged statement

was not defamatory. At the time her supervisor made the statement, Swan had

received the June 2005 Action Plan, which stated that Swan’s failure to improve

her performance “may result in further disciplinary action up to and including

termination.” Her supervisor’s summary of the June 2005 Action Plan as a “final

written warning” is, at the very least, substantially true.

      Moreover, the communication between Swan’s supervisor and the Texas

human resources department was a privileged, intra-corporate communication. “A

                                            7
background investigation of an employee is subject to conditional privilege, and

any defamatory statements therein are not actionable unless the privilege is abused

by publishing the statements with malice.” Bank of Am. Nev. v. Bourdeau, 982

P.2d 474, 475 (Nev. 1999) (per curiam). Swan presented no evidence that her

supervisor’s statement was motivated by malice. Swan’s conclusory allegation

that the statement was a lie and, therefore, made with malice, is insufficient to

survive summary judgment.

      Alternatively, Swan contended that the various disciplinary letters that BOA

issued Swan were disingenuous and slanderous. This theory, too, lacks merit.

Swan first asserted this theory in her opposition to BOA’s motion for summary

judgment, in violation of the “notice pleading” standard. Further, Swan failed to

set forth any evidence as to the falsity of the statements in the disciplinary letters.

      AFFIRMED.




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