                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 31 2010

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



                           FOR THE NINTH CIRCUIT


MARIA FRANCO,                                    No. 08-56685

             Plaintiff - Appellant,              D.C. No. 5:07-cv-00946-VAP-JCR

  v.
                                                 MEMORANDUM *
PIER 1 IMPORTS, INC., Erroneously
Sued As Pier 1 Imports (U.S) Inc.,

             Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                      Argued and Submitted February 2, 2010
                               Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.



       Maria Franco appeals the district court’s grant of summary judgment in

favor of her former employer, Pier 1 Imports, Inc., in Franco’s case, which alleges

breach of an implied contract not to terminate her employment without good cause,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and disability discrimination in violation of the California Fair Employment and

Housing Act, Cal. Gov’t Code § 12940(a). We affirm.



      California law presumes an at-will employment relationship “if the parties

have made no express oral or written agreement specifying the length of

employment or the grounds of termination.” Alexander Nextel Communications,

Inc., 52 Cal. App. 4th 1376, 1380 (Cal. App. 1997); see also Cal. Lab. Code §2922

(“An employment, having no specified term, may be terminated at the will of

either party on notice to the other.”). This presumption can be overcome only “by

evidence that the employer and employee impliedly agreed to termination only for

cause.” Alexander, 52 Cal. App. at 1380. The district court correctly concluded

that Franco failed to produce evidence of an implied agreement that she could be

terminated only for good cause. Franco’s assertions that her interviewer said that

employees were “very pampered” at that location did not support the conclusion

that Franco would not be discharged except for good cause. Pier 1 produced

substantial evidence supporting its position that the employment relationship was

at-will. Franco admitted in a deposition that she was an at-will employee.

Additionally, Pier 1 pointed to evidence that it had expressly and repeatedly

communicated the at-will nature of the employment relationship with Franco on


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her employment application, which she admitted that she read and signed, during

the job application and interview process, and in Pier 1’s employee handbook.



      Franco failed to make out a prima facie case of disability discrimination. A

prima facie case under California Government Code § 12940 requires the plaintiff

to show that “(1) he suffers from a disability; (2) he is otherwise qualified to do his

job; and (3) he was subjected to adverse employment action because of his

disability.” Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344-45 (Cal. App.

2008) (internal quotation mark and citation omitted). Franco failed to present

sufficient evidence to satisfy the third element of the prima facie case. Although

Franco alleged that she was discharged within a short time of disclosing her

medical condition to her supervisor, “temporal proximity alone is not sufficient to

raise a triable issue as to pretext once the employer has offered evidence of a

legitimate nondiscriminatory reason for the termination.” Arteaga, 163 Cal. App.

4th at 353. As legitimate non-discriminatory reasons for Franco’s termination, Pier

1 points to Franco’s poor service record, which pre-dated the disclosure of her

medical condition, and Franco’s failure to open the warehouse or to follow proper

notification procedures just a few days before her termination. Because Franco

failed to present evidence that she was fired because of her medical condition, the


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district court properly granted summary judgment to Pier 1 on the discrimination

claim.



AFFIRMED.




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