                                                                           FILED
                       CORRECTED MEMORANDUM +                               NOV 02 2010

                                                                        MOLLY C. DWYER, CLERK
                            NOT FOR PUBLICATION                          U .S. C O U R T OF APPE ALS




                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



EQUAL EMPLOYMENT                                 No. 09-16019
OPPORTUNITY COMMISSION,
                                                 D.C. No. 2:07-cv-01424-FJM
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

BANNER HEALTH, an Arizona
corporation, DBA Banner Good Samaritan
Medical Center,

              Defendant - Appellee.



EQUAL EMPLOYMENT                                 No. 09-16769
OPPORTUNITY COMMISSION,
                                                 D.C. No. 2:07-cv-01424-FJM
              Plaintiff - Appellee,

  v.

BANNER HEALTH, an Arizona
corporation, DBA Banner Good Samaritan
Medical Center,

              Defendant - Appellant.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                       Argued and Submitted October 8, 2010
                             San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

      The Equal Employment Opportunity Commission (“EEOC”) appeals the

district court’s grant of summary judgment in favor of defendant Banner Health

(“Banner”). The EEOC brought this age discrimination claim against Banner on

behalf of Fernando and Maria Rosales, a married couple, who worked for Banner

before they were terminated at age 61, allegedly for missing work the week after

Christmas. The district court held that the EEOC had not established a prima facie

case of age discrimination nor had it raised any issue of material fact as to whether

Banner’s legitimate non-discriminatory reason for the terminations was pretext.

      Banner cross appeals the district court’s order denying its motion for

attorneys’ fees and costs. The district court reviewed the EEOC’s conduct and

found that while the agency may have been “profoundly mistaken” and its

approach “unprofessional,” it did not act in bad faith or to purposefully oppress

Banner. Because the district court found no bad faith, it declined to award Banner


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its fees and costs under either 28 U.S.C. § 1927 or its inherent authority to sanction

bad faith litigation.

       We review the district court’s grant of summary judgment de novo. Lindahl

v. Air France, 930 F.2d 1434, 1436 (9th Cir. 1991). We review for abuse of

discretion the district court’s denial of attorneys’ fees under 28 U.S.C. § 1927 and

its inherent power to sanction bad-faith litigation. See In re Keegan Mgmt. Co.

Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996); Primus Auto. Fin. Servs., Inc. v.

Batarse, 115 F.3d 646, 648 (9th Cir. 1997). Jurisdiction is proper under 28 U.S.C.

§ 1291, and we affirm.

       1.     The EEOC’s age discrimination claim

       The Age Discrimination in Employment Act (“ADEA”) prohibits employers

from “discharg[ing] any individual . . . because of such individual’s age.” 29

U.S.C. § 623(a)(1). This court evaluates ADEA claims based on circumstantial

evidence pursuant to the three-step test first articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).1 + Diaz v. Eagle Produce Ltd. P’ship, 521

F.3d 1201, 1207 (9th Cir. 2008). Under the McDonnell Douglas test, the plaintiff

must first establish each of the four elements of a prima facie case. Id. If the


       1
        The Supreme Court, however, has not definitively determined whether the
evidentiary framework established in McDonnell Douglas applies to ADEA
claims. See Gross v. FLB Fin. Servs., Inc., 129 S.Ct. 2343, 2349 n.2 (2009).

                                           3
plaintiff is successful, the burden shifts to the employer to articulate a legitimate

non-discriminatory reason for its adverse employment action. Id. It is then the

plaintiff’s task to prove that the employer’s proffered reason is mere pretext for

unlawful discrimination. Id. To survive summary judgment, a plaintiff must do

more than just establish a prima facie case, they “must tender a genuine issue of

material fact as to pretext.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.

1994) (citation ommited).

      We affirm the district court because even assuming the EEOC established a

prima facie case of age discrimination, it did not raise a triable issue about whether

the Rosaleses were terminated because of their age. To demonstrate pretext, the

EEOC must “produce enough evidence to allow a reasonable fact finder to

conclude either: (a) that the alleged reason for the discharge was false, or (b) that

the true reason for the discharge was a discriminatory one.” Coleman v. Quaker

Oats Co., 232 F.3d 1271, 1287 (9th Cir. 2000) (quoting Nidds v. Schindler

Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997)). However, the EEOC must do

more than merely deny the credibility of Banner’s proffered reason. Cornwell v.

Electra Cent. Credit Union, 439 F.3d 1018, 1029 n.6 (9th Cir. 2006).

      Here, the EEOC’s evidence goes no further than denying the credibility of

Armstrong’s testimony that he never granted the Rosaleses time off. There is no


                                            4
additional evidence showing that Banner’s action “was taken for impermissibly

discriminatory reasons.” Wallis, 26 F.3d at 889. Moreover, regardless of whether

Armstrong verbally granted approval, it is undisputed that the Rosaleses failed to

follow Banner’s policy requiring them to obtain written approval of their time-off

request. As a result, they missed several scheduled shifts of work—a terminable

offense. Therefore, we affirm the district court’s grant of summary judgment in

favor of Banner.

      2.      Banner’s motion for attorneys’ fees and costs

      District courts have authority to award attorneys’ fees and costs under 28

U.S.C. § 1927. Additionally, district courts have inherent authority to impose an

award of attorneys’ fees and costs in cases where the losing party has acted in bad

faith or vexatiously. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.

240, 258-59 (1975). A finding of subjective bad faith is essential to an award of

attorneys’ fees under either section 1927 or a court’s inherent power. See In re

Keegan, 78 F.3d at 436 (section 1927); Primus Auto., 115 F.3d at 648 (inherent

authority).

      The district court did not abuse its discretion in denying Banner’s motion for

fees and costs. Although Banner raised several complaints about the EEOC’s

conduct, the district court found that there was no indication that the EEOC had


                                          5
acted with subjective bad faith or with the intent to harass Banner. The EEOC’s

conduct does not demand a finding of bad faith, and we cannot say that the district

court’s determination “lies beyond the pale of reasonable justification under the

circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).

Therefore, we affirm the district court’s order denying Banner’s motion for

attorneys’ fees and costs.

      AFFIRMED.




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