Sara Viteri-Butler v. University of California Hastings College of the Law

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARA VITERI-BUTLER,
Plaintiff - Appellant,
v.
UNIVERSITY OF CALIFORNIA
HASTINGS COLLEGE OF THE LAW,
Defendant - Appellee.
No. 14-15656
D.C. No. 4:12-cv-02651-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Submitted May 13, 2016**
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Sara Viteri-Butler appeals from the district court’s grant of summary
judgment to the University of California, Hastings College of Law (“Hastings”) in
her lawsuit following elimination of her position as Financial Aid Assistant. The
FILED
MAY 18 2016
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).

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facts of this case are known to the parties, and we do not repeat them here. We
have jurisdiction under 28 U.S.C. § 1291.
I
Viteri-Butler first argues that the district court erred by “failing to rule” on
her second Rule 56(d) request to deny or defer consideration of Hastings’ motion
for summary judgment. See Fed. R. Civ. Pro. 56(d). But the district court did
effectively rule on her Rule 56(d) motion insofar as its order granting summary
judgment to Hastings specifically “terminate[d] all pending motions.” That ruling
was not an abuse of discretion. The court had previously left the record open so
that Viteri-Butler could complete discovery regarding Hastings’ reduction in force.
Yet Viteri-Butler did not seek additional production or request a motion to compel,
despite having a month to complete discovery and submit a brief to the court.
Moreover, there is no reason to think that any additional discovery “would have
precluded summary judgment.” Nat’l Res. Def. Council v. Houston, 146 F.3d
1118, 1133 (9th Cir. 1998) (quoting Qualls v. Blue Cross of Cal., Inc., 22 F.3d
839, 844 (9th Cir.1994)).1
II
1 “[F]ormer Rule 56(f) . . . is substantively the same as current Rule 56(d).”
Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 899 n.7 (9th Cir. 2012).
2

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Viteri-Butler next argues that the court erred in granting summary judgment
to Hastings on her claims of age and race discrimination under the California Fair
Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900 et seq.; the Age
Discrimination Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; and
the Civil Rights Act of 1866, 42 U.S.C. § 1981. We disagree.
When assessing claims of age discrimination under FEHA and ADEA or
race discrimination under FEHA and § 1981, courts use the McDonnell Douglas
burden-shifting framework on summary judgment. See Shelley v. Geren, 666 F.3d
599, 607–08 (9th Cir. 2012); Earl v. Nielsen Media Research, Inc., 658 F.3d 1108,
1112 (9th Cir. 2011); Metoyer v. Chassman, 504 F.3d 919, 930–31 (9th Cir. 2007).
We question whether Viteri-Butler met her prima facie burden with respect to all
of her claims. But even assuming she did so, Hastings provided a legitimate non-
discriminatory reason for Viteri-Butler’s termination. The elimination of Viteri-
Butler’s position arose in the context of Hastings’ decision to cut its staff salary
budget by $1.55 million. Moreover, Viteri-Butler’s own description of her duties
confirms that her position was “largely clerical” and thus less essential to the core
functions of the Financial Aid Department than the roles of other employees. We
are unpersuaded that Viteri-Butler has offered “specific, substantial evidence of
pretext” to undermine this justification. Coleman v. Quaker Oats Co., 232 F.3d
3

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1271, 1282 (9th Cir. 2000) (citation omitted). Summary judgment on these claims
was proper.
III
Viteri-Butler contends finally that the district court erred in granting
summary judgment to Hastings on her claim that Hastings intentionally interfered
with her retirement benefits in violation of § 510 of ERISA. On appeal, Hastings
contends that the University of California Retirement Plan (“UCRP”) is a
“governmental plan” and thus not governed by ERISA. See 29 U.S.C. §§
1003(b)(1), 1002(32). However, we need not reach such question because even
assuming ERISA applies to the UCRP, Viteri-Butler has pointed us to no evidence
that anyone at Hastings even knew about any increased pension payout. See Dytrt
v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 896 (9th Cir. 1990) (“[N]o action
[under § 510] lies where the alleged loss of rights is a mere consequence, as
opposed to a motivating factor behind the termination.”).
AFFIRMED.
4

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