Marilyn Johnson v. Service Employees International Union Local 1107

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN JOHNSON,
Plaintiff-Appellant,
v.
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL
1107,
Defendant-Appellee.
No. 16-15795
D.C. No.
2:14-cv-01104-JCM-GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 10, 2017**
San Francisco, California
Before: O’SCANNLAIN, TASHIMA, and BYBEE, Circuit Judges.
Marilyn Johnson appeals from the district court’s decision granting Service
FILED
OCT 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 4 --

Employees International Union Local 1107’s motion for summary judgment. The
facts are known to the parties and will not be repeated here unless necessary.
I
Johnson claims that her employer, SEIU Local 1107, racially discriminated
against her in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C.
§ 2000e–2(a)(1). On appeal, Johnson invokes the burden-shifting framework
established by McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). Under
this framework, Johnson “must first establish a prima facie case of employment
discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.
2010) (quoting Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007)). If
Johnson establishes a prima facie case, “[t]he burden of production, but not
persuasion, then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the challenged action.” Id. (quoting Chuang v. Univ.
of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000)). If a legitimate,
nondiscriminatory reason is proffered, Johnson “must then raise a triable issue of
material fact as to whether the defendant’s proffered reasons . . . are mere pretext
for unlawful discrimination.” Id.
2

-- 2 of 4 --

II
The district court determined that Johnson did not establish a prima facie
case of racial discrimination because she identified no similarly-situated
individuals. But even were Johnson to establish a prima facie case with respect to
all alleged instances of racial discrimination—which we assume without
deciding—Johnson fails to proffer evidence that “a discriminatory reason more
likely motivated the employer or . . . that the employer’s proffered explanation is
unworthy of credence.” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116,
1126–27 (9th Cir. 2009) (quoting Chuang, 225 F.3d at 1124). Johnson does not put
forth any evidence of pretext—let alone “specific, substantial evidence”—in
response to Local 1107’s assertion that it fired Johnson for being dishonest. Hawn,
615 F.3d at 1158 (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.
1983)). Nor does she offer any evidence of pretext with respect to her reassignment
to a “floater” position. Indeed, Local 1107 had reassigned her because, as she
acknowledged, “being a floater requires a variety of skills[.]”
Thus, we affirm on the alternative ground that Johnson does not “raise a
genuine factual question whether, viewing the evidence in the light most favorable
to [her], [Local 1107’s] reasons are pretextual.” Chuang, 225 F.3d at 1126.
3

-- 3 of 4 --

III
The judgment of the district court is AFFIRMED.
4

-- 4 of 4 --