Anna Vallee Swan v. Bank of America

This disposition is not appropriate for publication and is not precedent except*
as provided by 9th Cir. R. 36-3.
The Honorable Robert E. Cowen, Senior United States Circuit Judge for**
the Third Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA VALLEE SWAN,
Plaintiff - Appellant,
v.
BANK OF AMERICA,
Defendant - Appellee.
No. 08-16889
D.C. No. 2:07-cv-00217-PMP-
LRL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted December 9, 2009
San Francisco, California
Before: COWEN, GRABER and BYBEE, Circuit Judges.**
FILED
DEC 30 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Anna Vallee Swan, a former employee of Bank of America (“BOA”),
appeals an order granting summary judgment in BOA’s favor, disposing of her
discrimination, retaliation, and slander claims. Swan contends that the district
court erred in holding that Swan failed to: (i) establish a prima facie case of
discrimination under the Age Discrimination in Employment Act (“ADEA”),
(ii) establish that BOA’s justification for her termination was pretext for
discriminatory animus, (iii) timely file her Nevada discrimination claims,
(iv) establish a claim under the Family and Medical Leave Act (“FMLA”), and
(v) establish a claim for slander under Nevada law. We affirm.
I. STANDARD OF REVIEW
This court reviews de novo a district court’s grant of summary judgment.
Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). Summary judgment is
inappropriate if reasonable jurors, drawing all inferences in favor of the
nonmoving party, could return a verdict in the nonmoving party’s favor. United
States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999).
II. DISCUSSION
A. Swan’s ADEA Discrimination Claim
The district court properly concluded that Swan’s ADEA discrimination
claim lacked merit. To establish a prima facie claim of discrimination under the

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ADEA, an employee must demonstrate that she is (1) at least forty years old, (2)
performed her job satisfactorily, (3) was discharged, and (4) either replaced by a
substantially younger employee with equal or inferior qualifications or discharged
under circumstances otherwise “giving rise to an inference of age discrimination.”
Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). “The requisite
degree of proof necessary to establish a prima facie case for . . . ADEA claims on
summary judgment is minimal and does not even need to rise to the level of a
preponderance of the evidence.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
1094 (9th Cir. 2005) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994)).
Swan failed to establish the second element—that she performed her job
satisfactorily. Early in her tenure with BOA, Swan received written warnings on
three occasions indicating that if she did not improve her performance she risked
termination. Additional evaluations in her personnel file indicate that throughout
her tenure with BOA she performed satisfactorily with respect to certain tasks and
poorly with respect to other tasks. Indeed, in 2005, she received written
notifications of performance deficiencies and warnings of potential termination in
February, June, and November. Despite these warnings and additional efforts by

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BOA, Swan continued to perform poorly and, ultimately, was terminated for poor
performance.
Moreover, the district court properly concluded that Swan failed to establish
pretext. An employee may demonstrate pretext “‘either directly by persuading the
court that a discriminatory reason likely motivated [an employer] or indirectly by
showing that [an employer’s] proffered explanation is unworthy of credence.’”
Diaz, 521 F.3d at 1212 (quoting Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d
1080, 1093-94 (9th Cir. 2001)). At this stage, the employee must produce
“specific, substantial evidence of pretext.” Coleman, 232 F.3d at 1282.
BOA asserted that it terminated Swan for poor performance. Swan’s
allegations of stellar performance are insufficient to survive summary judgment.
For example, Swan asserts that BOA paid her discretionary, merit-based bonuses
in 2005 and that payment of these bonuses refutes BOA’s justification of poor
performance. Notably, there is nothing in the record to support these assertions
and Swan cannot defeat summary judgment with mere conclusory allegations. See
Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Further,
during her deposition, Swan conceded that she had no reason to believe that the
BOA officer who made the decision to terminate her (who also was a member of
her protected class) terminated her on the basis of her age.

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B. Swan’s State-law Discrimination Claim
The district court properly concluded that Swan’s state-law discrimination
claims were time-barred. Under Nevada law, “[n]o action . . . may be brought
more than 180 days after the date of the act complained of.” Nev. Rev. Stat.
§ 613.430. BOA terminated Swan on December 30, 2005, which started the clock
for the statute of limitations. Swan filed a complaint with the Nevada Equal Rights
Commission (“NERC”) on June 27, 2006, which was 178 days after her
termination. NERC issued a right-to-sue letter to Swan on November 24, 2006.
Swan then waited approximately ninety days before filing her federal complaint.
The statute of limitations tolled during the pendency of her complaint before the
NERC. See id. (“When a complaint is filed with the [NERC] the limitation
provided by this section is tolled as to any action authorized by NRS 613.420
during the pendency of the complaint before the Commission.”). However, her
state-law discrimination claims are untimely by approximately eighty-eight days.
C. Swan’s FMLA Claim
The district court properly granted summary judgment in BOA’s favor on
Swan’s FMLA claim. To prevail on an FMLA interference claim, a plaintiff must
establish “by a preponderance of the evidence that her taking of FMLA-protected
leave constituted a negative factor in the decision to terminate her.” Bachelder v.

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Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). The gist of Swan’s
claim is that she had a “stellar” employment history and that BOA began targeting
her with frivolous disciplinary measures only after she gave notice of her intent to
take FMLA-related leave. The record belies this assertion as there is ample
documentation of her performance problems long before she gave notice of her
intent to take FMLA-related leave.
Even if we were to look only at what transpired after her return from leave,
Swan cannot establish that her termination is causally related to her leave. Swan
offered temporal proximity as a means of establishing causation. However, BOA
terminated Swan four months after her return from leave, which is too remote in
time to support a finding of causation premised solely on temporal proximity. See
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)
(explaining in the context of a Title VII claim that “cases that accept mere temporal
proximity between an employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be ‘very close’”); cf.
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (stating
that “causation can be inferred from timing alone where an adverse employment
action follows on the heels of protected activity”). Further, an employer is not

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required to cease pursuing a disciplinary course of action against an employee that
began before that employee took FMLA-related leave, simply because that
employee took leave.
D. Swan’s Slander Claim
The district court properly granted summary judgment in BOA’s favor on
Swan’s slander claim. A statement is not defamatory “if it is absolutely true, or
substantially true.” Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 88 (Nev. 1993).
This claim arises out of Swan’s alleged request to transfer to a Texas branch office
and a corresponding background check, which resulted in the Texas branch
denying her transfer request. Swan contends that her supervisor slandered her
when her supervisor told the Texas human resources department that Swan was on
“final written warning” status. Contrary to Swan’s assertion, the alleged statement
was not defamatory. At the time her supervisor made the statement, Swan had
received the June 2005 Action Plan, which stated that Swan’s failure to improve
her performance “may result in further disciplinary action up to and including
termination.” Her supervisor’s summary of the June 2005 Action Plan as a “final
written warning” is, at the very least, substantially true.
Moreover, the communication between Swan’s supervisor and the Texas
human resources department was a privileged, intra-corporate communication. “A

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background investigation of an employee is subject to conditional privilege, and
any defamatory statements therein are not actionable unless the privilege is abused
by publishing the statements with malice.” Bank of Am. Nev. v. Bourdeau, 982
P.2d 474, 475 (Nev. 1999) (per curiam). Swan presented no evidence that her
supervisor’s statement was motivated by malice. Swan’s conclusory allegation
that the statement was a lie and, therefore, made with malice, is insufficient to
survive summary judgment.
Alternatively, Swan contended that the various disciplinary letters that BOA
issued Swan were disingenuous and slanderous. This theory, too, lacks merit.
Swan first asserted this theory in her opposition to BOA’s motion for summary
judgment, in violation of the “notice pleading” standard. Further, Swan failed to
set forth any evidence as to the falsity of the statements in the disciplinary letters.
AFFIRMED.

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