                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SARA VITERI-BUTLER,                              No. 14-15656

              Plaintiff - Appellant,             D.C. No. 4:12-cv-02651-PJH

 v.
                                                 MEMORANDUM*
UNIVERSITY OF CALIFORNIA
HASTINGS COLLEGE OF THE LAW,

              Defendant - Appellee.


                  Appeal from the United States District Court
                       for the Northern District of California
                Phyllis J. Hamilton, Chief District Judge, Presiding

                             Submitted May 13, 2016**
                              San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.

      Sara Viteri-Butler appeals from the district court’s grant of summary

judgment to the University of California, Hastings College of Law (“Hastings”) in

her lawsuit following elimination of her position as Financial Aid Assistant. The

        *
             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).
facts of this case are known to the parties, and we do not repeat them here. We

have jurisdiction under 28 U.S.C. § 1291.

                                           I

      Viteri-Butler first argues that the district court erred by “failing to rule” on

her second Rule 56(d) request to deny or defer consideration of Hastings’ motion

for summary judgment. See Fed. R. Civ. Pro. 56(d). But the district court did

effectively rule on her Rule 56(d) motion insofar as its order granting summary

judgment to Hastings specifically “terminate[d] all pending motions.” That ruling

was not an abuse of discretion. The court had previously left the record open so

that Viteri-Butler could complete discovery regarding Hastings’ reduction in force.

Yet Viteri-Butler did not seek additional production or request a motion to compel,

despite having a month to complete discovery and submit a brief to the court.

Moreover, there is no reason to think that any additional discovery “would have

precluded summary judgment.” Nat’l Res. Def. Council v. Houston, 146 F.3d

1118, 1133 (9th Cir. 1998) (quoting Qualls v. Blue Cross of Cal., Inc., 22 F.3d

839, 844 (9th Cir.1994)).1

                                          II



      1
       “[F]ormer Rule 56(f) . . . is substantively the same as current Rule 56(d).”
Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 899 n.7 (9th Cir. 2012).

                                           2
      Viteri-Butler next argues that the court erred in granting summary judgment

to Hastings on her claims of age and race discrimination under the California Fair

Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900 et seq.; the Age

Discrimination Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; and

the Civil Rights Act of 1866, 42 U.S.C. § 1981. We disagree.

      When assessing claims of age discrimination under FEHA and ADEA or

race discrimination under FEHA and § 1981, courts use the McDonnell Douglas

burden-shifting framework on summary judgment. See Shelley v. Geren, 666 F.3d

599, 607–08 (9th Cir. 2012); Earl v. Nielsen Media Research, Inc., 658 F.3d 1108,

1112 (9th Cir. 2011); Metoyer v. Chassman, 504 F.3d 919, 930–31 (9th Cir. 2007).

We question whether Viteri-Butler met her prima facie burden with respect to all

of her claims. But even assuming she did so, Hastings provided a legitimate non-

discriminatory reason for Viteri-Butler’s termination. The elimination of Viteri-

Butler’s position arose in the context of Hastings’ decision to cut its staff salary

budget by $1.55 million. Moreover, Viteri-Butler’s own description of her duties

confirms that her position was “largely clerical” and thus less essential to the core

functions of the Financial Aid Department than the roles of other employees. We

are unpersuaded that Viteri-Butler has offered “specific, substantial evidence of

pretext” to undermine this justification. Coleman v. Quaker Oats Co., 232 F.3d


                                           3
1271, 1282 (9th Cir. 2000) (citation omitted). Summary judgment on these claims

was proper.

                                          III

      Viteri-Butler contends finally that the district court erred in granting

summary judgment to Hastings on her claim that Hastings intentionally interfered

with her retirement benefits in violation of § 510 of ERISA. On appeal, Hastings

contends that the University of California Retirement Plan (“UCRP”) is a

“governmental plan” and thus not governed by ERISA. See 29 U.S.C. §§

1003(b)(1), 1002(32). However, we need not reach such question because even

assuming ERISA applies to the UCRP, Viteri-Butler has pointed us to no evidence

that anyone at Hastings even knew about any increased pension payout. See Dytrt

v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 896 (9th Cir. 1990) (“[N]o action

[under § 510] lies where the alleged loss of rights is a mere consequence, as

opposed to a motivating factor behind the termination.”).

      AFFIRMED.




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