Michael Drumm v. Morningstar, Inc., No. 09-17572 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 25 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MICHAEL DRUMM, Plaintiff - Appellant, No. 09-17572 D.C. No. 3:08-cv-03362-TEH v. MEMORANDUM * MORNINGSTAR, INC., Defendant - Appellee. Appeal from the United States District Court for the Northern District of California Thelton E. Henderson, Senior District Judge, Presiding Argued and Submitted February 18, 2011 San Francisco, California Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District Judge.** Michael Drumm appeals the district court s grant of summary judgment with respect to his discrimination claim on the basis of sexual orientation. Drumm, * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Lynn S. Adelman, District Judge for the United States District Court for the Eastern District of Wisconsin, sitting by designation. however, failed to establish a prima facie case of discrimination because he failed to show that he was performing competently in the position he held. Guz v. Bechtel Nat l, Inc., 24 Cal. 4th 317, 355 (2004). The evidence shows that Drumm acted unprofessionally in his relationship with two of his employer s major clients and that both clients expressed their discontent with Drumm s performance. Drumm failed to submit specific facts that would create a genuine issue of material fact as to the quality of his performance or the reasons for his termination. Fed. R. Civ. P. 56(c). AFFIRMED. 2

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