                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2014

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



                           FOR THE NINTH CIRCUIT

DIANA BAKER,                                     No. 12-16667

              Plaintiff - Appellant,             D.C. No. 4:09-cv-00530-AWT

  v.
                                                 MEMORANDUM*
SOUTHWEST ENERGY SOLUTIONS,
INC., an Arizona corporation and
TUCSON ELECTRIC POWER
COMPANY, an Arizona corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                A. Wallace Tashima, Senior Circuit Judge, Presiding

                       Argued and Submitted June 13, 2014
                            San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

       Plaintiff Diana Baker appeals the district court’s grant of summary judgment

for Defendants Southwest Energy Solutions, Inc., and Tucson Electric Power

Company in this employment discrimination case. Reviewing de novo a grant of

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
summary judgment, Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th

Cir. 2011), and for abuse of discretion the district court’s denial of Plaintiff’s

motion for reconsideration, Minn. Mut. Life Ins. Co. v. Ensley, 174 F.3d 977, 987

(9th Cir. 1999), we affirm.

      1. The district court did not err in granting summary judgment for

Defendants. Plaintiff pleaded four counts: a sex discrimination claim, a race

discrimination claim, and two retaliation claims. She established a prima facie

case of discrimination and retaliation with respect to the denial of overtime

opportunities. Nilsson v. City of Mesa, 503 F.3d 947, 953–54 (9th Cir. 2007);

Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004).

Defendants, however, proffered a legitimate, non-discriminatory and non-

retaliatory reason for offering overtime opportunities to a co-worker: He was more

qualified for the job. Plaintiff concedes that he performed better when both were

tested on the front-end loader in 2008. Plaintiff’s conclusory statements fail to

create a triable issue of fact as to whether Defendants’ proffered reason is

"unworthy of credence." Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)

(internal quotation marks omitted).

      2. Plaintiff failed to establish a prima facie case of discrimination or

retaliation stemming from a denial of equal crane operator time. First, the record


                                            2
does not show significant differences between her crane operator time and that of

similarly situated co-workers. Fonseca, 374 F.3d at 850. Second, there is no

evidence that supervisors knew or should have known about alleged

misrepresentations made on timesheets by her co-worker. Bains LLC v. Arco

Prods. Co., 405 F.3d 764, 773–74 (9th Cir. 2005). And we decline to consider

other incidents, such as alleged disciplinary discrepancies, that were not presented

to the district court at summary judgment as adverse employment actions.

Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000). We also note that

Plaintiff remains employed by Defendants.

      3. The district court did not abuse its discretion in denying Plaintiff’s

motion for reconsideration. Defendants moved for summary judgment on all four

counts of Plaintiff’s first amended complaint and sought dismissal with prejudice

of that entire complaint. Plaintiff thus was on notice to come forward with any

evidence that might allow her to proceed to trial on any or all of her claims. United

States v. 14.02 Acres of Land, 547 F.3d 943, 955 (9th Cir. 2008). Plaintiff

identifies no plausible grounds for reconsideration. Smith v. Clark Cnty. Sch.

Dist., 727 F.3d 950, 955 (9th Cir. 2013).

      AFFIRMED.




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