Constance London v. SEARS, ROEBUCK & COMPANY, an Illinois company

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).
The Honorable Kevin Thomas Duffy, Senior District Judge for the***
U.S. District Court for the Southern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSTANCE LONDON,
Plaintiff - Appellant,
v.
SEARS, ROEBUCK & COMPANY, an
Illinois company,
Defendant - Appellee.
No. 10-16994
D.C. No. 5:07-cv-05148-JW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Submitted November 14, 2011**
San Francisco, California
Before: HAWKINS and M. SMITH, Circuit Judges, and DUFFY, Senior District
Judge.***
FILED
NOV 16 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Plaintiff-Appellant Constance London (London) appeals the district court’s
summary judgment dismissal of her claims of wrongful termination in violation of
public policy, age discrimination, defamation, and intentional infliction of
emotional distress. As the facts and procedural history are familiar to the parties,
we do not recite them here except as necessary to explain our disposition. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court properly granted summary judgment to Defendant-
Appellee Sears, Roebuck & Co. (Sears) as to London’s age discrimination claim
under the California Fair Employment and Housing Act (FEHA), Cal Gov’t Code
§§ 12900-12996. FEHA claims are evaluated under the three-part burden-shifting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Caldwell v. Paramount Unified School Dist., 48 Cal. Rptr. 2d 448, 452-53 (Ct.
App. 1995). London failed to state a prima facie claim because she did not
demonstrate that she was performing her job adequately. To the contrary, London
admitted to violating the employee discount card policy, and she was written up
repeatedly for poor job performance. London also failed to state a prima facie
claim because she did not allege circumstances to suggest a discriminatory motive.
She produced no evidence of age discrimination; in fact, she testified in a
deposition that she was not treated differently because of her age. Moreover, even

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if London had stated a prima facie claim for discrimination, Sears articulated a
legitimate, nondiscriminatory reason for the termination: London’s violation of
Sears’s zero-tolerance discount card policy. London has provided no evidence to
rebut this reason as pretextual.
The district court correctly granted summary judgment to Sears as to
London’s claim for termination in violation of public policy. London alleged a
violation of Cal. Civ. Code §§ 1749.45 et seq., which protects the rights of gift
certificate and gift card holders. London’s termination was unrelated to her use of
the gift card. She was terminated because she violated her employer’s discount
card policy. Thus, her termination did not violate the public policy of this statute.
We also affirm the dismissal of London’s defamation claim. London must
prove “the intentional publication of a statement of fact that is false, unprivileged,
and has a natural tendency to injure or which causes special damage.” Smith v.
Maldonado, 85 Cal. Rptr. 2d 397, 402 (Ct. App. 1999) (emphasis added).
London’s defamation claim fails because her allegations arise from Sears’s true
statement that she was terminated for violating the discount card policy.
Moreover, because London presented no evidence that Sears made the statement
with malice, it is privileged under Cal. Civ. Code § 47(c). See King v. United
Parcel Service, 60 Cal. Rptr. 3d 359, 372 (Ct. App. 2007).

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The district court correctly dismissed London’s intentional infliction of
emotional distress claim. Her termination for violating a well-established company
policy was not “extreme and outrageous[.]” Christensen v. Superior Court, 2 Cal.
Rptr. 2d 79, 100 (Cal. 1991).
Because we affirm the district court’s summary judgment dismissal, we need
not consider London’s claims for punitive damages.
AFFIRMED.

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