                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 27 2015

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

SHEILA RAU,                                      No. 13-35809

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00194-BLW

 v.
                                                 MEMORANDUM*
UNITED PARCEL SERVICE, INC., a
Delaware and Ohio corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                             Submitted May 6, 2015**
                               Seattle, Washington

Before: WALLACE, KLEINFELD, and CHRISTEN, Circuit Judges.

      Plaintiff-Appellant Sheila Rau appeals from the district court judgment

dismissing her action against her former employer United Parcel Service (UPS).

Rau argues that the district court erred in granting summary judgment for UPS

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
because there are genuine issues of material fact with respect to her Title VII claim

and her state law claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and,

reviewing de novo, Hawn v. Executive Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th

Cir. 2010), we affirm.

      We analyze Title VII claims through the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), under which a plaintiff

must first establish a prima facie case by showing (1) that she is a member of a

protected class; (2) that she was qualified for her position and performing her job

satisfactorily; (3) that she experienced an adverse employment action; and (4) that

similarly situated individuals outside her protected class were treated more

favorably than she was treated. Hawn, 615 F.3d at 1156.

      The district court was correct to conclude that even when the facts are taken

in the light most favorable to Rau, she has not met her burden of establishing that

similarly situated men were treated more favorably. To the extent that Robert

Orloff was similarly situated to Rau, Orloff was not treated more favorably than

Rau. Any differences in treatment were appropriate given the differences in

situation between Rau and Orloff, including the complaints received by UPS

regarding Rau’s conduct with her subordinates and the fact that Orloff chose to

reject the separation agreement offered to him while Rau chose to negotiate the


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terms of the agreement offered to her. Id. at 1159–60. Since we conclude that the

district court was correct regarding Rau’s failure to meet her minimal burden under

the fourth prima facie factor of the McDonnell Douglas framework, we need not

reach the other factors.

      Our analysis of Rau’s gender discrimination claims under the Idaho Human

Rights Act is the same as our analysis of her Title VII claim. See Peterson v.

Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).

      Rau’s claim for wrongful termination in violation of public policy is based

on her Title VII claim, so the district court was also correct to grant summary

judgment as to the wrongful termination claim in light of the grant of summary

judgment as to her Title VII claim.

      Rau’s claim regarding breach of the implied covenant of good faith and fair

dealing is based on the theory that UPS breached the covenant implied in her

employment agreement when UPS treated her differently from similarly situated

employees based on her gender. However, as discussed above, the district court

was correct to conclude that Rau failed to make a prima facie case that UPS had

treated similarly situated men more favorably than UPS treated Rau, so the district

court was also correct to grant summary judgment as to her breach claim.




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      Rau’s claim for intentional infliction of emotional distress is based on the

validity of her allegations of gender discrimination. Since Rau failed to make a

prima facie case in support of her allegations of gender discrimination, as

discussed above, the district court was also correct to grant summary judgment as

to her claim for intentional infliction of emotional distress.

      Rau does not dispute the district court’s conclusion that she failed to show

that UPS had an established duty to her that could serve as the foundation for her

negligent infliction of emotional distress claim. The district court was therefore

correct to grant summary judgment as to her claim for negligent infliction of

emotional distress.

      AFFIRMED.




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