Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1990)

Dwana PAUL, Plaintiff-Appellant,v.KAISER PERMANENTE HOSPITAL, OAKLAND, Defendant-Appellee.

No. 89-15083.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 1990.Decided April 5, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Dwana Paul ("Paul") appeals in her action under 42 U.S.C. § 2000e for sexual discrimination at her workplace against Kaiser Permanente Hospital ("Kaiser") in Oakland, California. The district court granted Kaiser's motion for summary judgment. We affirm.

MERITS OF THE SUMMARY JUDGMENT RULING

Paul alleges that Kaiser subjected her to "disparate treatment" in its employment practices. Under this theory, Paul must show that she was treated less favorably because of her gender, see, e.g., Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986), and she must offer " [d]irect or circumstantial proof of discriminatory motive." Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988).

To make out a prima facie case of gender discrimination, Paul must show that: (1) she belonged to a protected class; (2) she was qualified for the position sought; (3) she was denied the promotion; and (4) persons outside the protected class were promoted in her stead. Pejic, 840 F.2d at 672. If Paul proves such a case, the burden then shifts to Kaiser to demonstrate a legitimate nondiscriminatory reason for taking the employment action in question. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Paul can defeat Kaiser's motion for summary judgment only by demonstrating that the hospital's "explanation was but a pretext for discrimination." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983).

The district court properly rejected Paul's allegation of Kaiser's discrimination when it did not promote her during a unit manager's four-month maternity leave. Kaiser was under no duty under the collective bargaining agreement to post or fill the position,1  and the managerial aspects of that job were performed by a person of the protected class, Shirley Hill. Thus Paul cannot make out a prima facie case with respect to the first alleged discriminatory action.2 

Paul next asserts that she was essentially "demoted" by being "forced" to transfer to a subordinate position. There is no dispute that she requested this transfer. Her claim that Kaiser directed her to fill in for absent unit assistants as a pretext for gender discrimination lacks evidentiary support. Likewise, her request that we infer such a discriminatory motive must fail. See, e.g., Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1787-88 (1989) (requiring proof of discriminatory motive before analyzing whether employer would have made the same decision absent such a motive); Texas Dep't of Community Affairs, 450 U.S. at 258.

Paul's final allegation of discrimination is that Kaiser passed her over for less qualified males to perform temporary senior unit assistant duties on the evening shift. We also reject this claim. She presents no evidence of discriminatory motive on the part of a woman, Weveline Aragon, who performed the ministerial task of selecting the persons for this task. Moreover, Paul has not rebutted Aragon's explanation that she was attempting to avoid the payment of overtime wages when possible. Based on these considerations, the district court properly rejected Paul's claims.

KAISER'S REQUEST FOR COSTS AND ATTORNEYS' FEES

Kaiser urges us to award double costs and/or attorney's fees as a sanction for bringing a frivolous appeal. International Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, 707 F.2d 425, 430 (9th Cir. 1983) ("An appeal is considered frivolous in this circuit when the result is obvious or the arguments of error advanced are wholly without merit."). Although we do not find this appeal persuasive, we do not regard it as frivolous, and thus reject Kaiser's request for fees and costs.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

See Chavez v. Tempe Union High School Dist. No. 213, 565 F.2d 1087, 1091 (9th Cir. 1977) ("Necessarily, the failure to prove the existence of a job opening is a fatal defect in a prima facie case of overt discrimination.")

 2

Cases cited by Paul are inapposite. See Ostroff v. Employment Exch., Inc., 683 F.2d 302, 304 (9th Cir. 1982) (per curiam) (discrimination claim permitted where employer refused to consider applicant's qualifications); Lynn v. Regents of Univ. of Cal., 656 F.2d 1337 (9th Cir. 1981), cert. denied, 459 U.S. 823 (1982) (tenure decision)

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