                                                                              FILED
                                                                              NOV 29 2010

                                                                          MOLLY C. DWYER, CLERK
                           NOT FOR PUBLICATION                              U.S. COURT OF APPEALS



                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


JEAN CLAIR MARKELL,                             No. 09-36007

              Plaintiff - Appellant,            D.C. No. 3:08-cv-00752-MFM

  v.
                                                MEMORANDUM*
KAISER FOUNDATION HEALTH
PLAN OF THE NORTHWEST

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Malcolm F. Marsh, District Judge, Presiding

                     Argued and submitted November 5, 2010
                                Portland, Oregon

Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
                                          1
      The district court granted summary judgment in favor of Kaiser Foundation

Health Plan of the Northwest (“Kaiser”) on appellant Jean Clair Markell’s claim that

Kaiser violated the Age Discrimination in Employment Act of 1967. We affirm.

      Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),

burden-shifting framework, a plaintiff must present a prima facie case of

discrimination and a triable issue of material fact as to pretext if the employer offers

a nondiscriminatory explanation for termination.

      Markell argues that her statements and two supporting affidavits of former

Kaiser employees provide such evidence. Even assuming that the affidavits were

admissible, they do not overcome Kaiser’s nondiscriminatory explanation for

Markell’s termination or provide evidence that Markell was performing her job to

Kaiser’s satisfaction. Markell concedes that she copied confidential patient records,

both of her own patients and of patients not under her care, and that she took these

records home with her.      These actions violated Kaiser’s internal policies and

potentially subjected Kaiser to liability under federal law.

      In order to overcome such a nondiscriminatory reason for termination, Markell

needed to provide “specific and substantial” evidence to show that Kaiser’s reason

was pretextual. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th

Cir. 2002). She did not meet this burden.


                                           2
      Significant factual disparities exist between the facts surrounding Markell’s

termination and the facts asserted by the two former employees in the affidavits.

Especially in view of Markell’s prior disciplinary record, the affidavits do not present

circumstances similar enough to allow the district court to find a triable issue of fact

as to whether Markell was performing her job satisfactorily or to show pretext.

      Prior to suit, a labor arbitrator found that Kaiser had good cause to fire Markell.

However, because it is not necessary to answer Kaiser’s collateral estoppel argument

to decide this case, we decline to do so.

AFFIRMED.




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