Stacy Desmond v. Charter Communications, Inc.; Does, 1-10

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STACY DESMOND,
Plaintiff-Appellant,
v.
CHARTER COMMUNICATIONS, INC.;
DOES, 1-10,
Defendants-Appellees.
No. 21-55756
D.C. No.
3:19-cv-02392-AJB-MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted November 15, 2022**
Pasadena, California
Before: NGUYEN and H.A. THOMAS, Circuit Judges, and FITZWATER,***
District Judge.
* 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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Stacy Desmond (“Desmond”) appeals the district court’s grant of summary
judgment in favor of Charter Communications, Inc. (“Charter”), on her
employment discrimination and other related claims. We have jurisdiction under
28 U.S.C. § 1291. Because the parties are familiar with the facts and record, we
need not recount them in any detail here. Reviewing the district court’s summary
judgment de novo, UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d
1006, 1014 (9th Cir. 2013), and its evidentiary rulings for abuse of discretion, ABS
Ent., Inc. v. CBS Corp., 908 F.3d 405, 413 (9th Cir. 2018), we affirm.
1. The district court properly granted summary judgment on Desmond’s
claims for disability discrimination, failure to reasonably accommodate her
disability under the ADA, and retaliation under the Fair Employment and Housing
Act and California Family Rights Act.1 These claims all rely on purported disputes
of material fact about Desmond’s sales quotas, sales performance, and multi-
dwelling unit (“MDU”) job application. Desmond fails, however, to point to any
1 Desmond advances three claims that are purely derivative of her discrimination,
retaliation, or harassment claims: (1) failure to prevent retaliation; (2) intentional
infliction of emotional distress; and (3) negligent infliction of emotional distress.
Because Desmond’s discrimination, retaliation, and harassment claims fail, these
claims fail as well. See Perez v. United Parcel Serv., Inc., No. 21-16538, 2022 WL
3681297, at *5 (9th Cir. Aug. 25, 2022). Desmond further alleged a derivative
violation of California’s unfair competition law, Cal. Bus. & Prof. Code § 17200,
which fails for the same reasons. Because Desmond did not address this latter
claim in her opening brief, she also has abandoned it on appeal. See United States
v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir.1997).

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record evidence to support the existence of a factual dispute. Instead, she relies on
conjecture or allegations not borne out by admissible evidence. For example:
a) Desmond contends that Charter should have adjusted her quotas
because she could not work more than two three-hour periods per day. But
Desmond’s doctor released her “to work 5 days per week, 3 hours of field time
with 1 hour break” and to “stand and/or walk for 3 hours at a time.” Because
Desmond’s medical restrictions allowed her to work full time, no triable issue of
fact existed as to whether Charter had to lower her quotas.
b) Desmond proffered a chart containing data that she supposedly
downloaded from Charter’s “portal” to show that, contrary to Charter’s contention,
she met her sales quotas. The district court properly sustained Charter’s objection
to the chart because the data was unauthenticated and lacked foundation. See Orr
v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Evid.
901(a). Desmond never explained how she could have accessed the data when, as
she admitted in her sworn declaration, Charter had barred her access to sales data.
Without the chart, nothing supports her allegation that Charter had falsified her
sales numbers.
c) Desmond argues, without citing to relevant record evidence, that
Charter rejected her application for an MDU position based on retaliatory or
discriminatory animus. The record suggests, as Charter argues, that the position’s

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requirements were precluded by her medical limitations.
2. The district court properly rejected Desmond’s claims for gender
discrimination, gender harassment, disability harassment, wrongful termination,
implied breach of contract, and defamation for failure to cite to sufficient evidence
to create a genuine issue of material fact as to each claim. On appeal, she again
fails to cite to any supporting evidence.
The only evidence that possibly establishes pretext on her gender
discrimination claim is a declaration stating that Charter replaced Desmond with a
male employee in her MDU position, which Charter disputes. See Guz v. Bechtel
Nat. Inc., 8 P.3d 1089, 1113 (Cal. 2000) (requiring plaintiff to establish pretext to
bring a disparate treatment discrimination claim). But this fact alone is insufficient
to raise an inference of pretext, particularly when Charter moved two other male
employees from their MDU positions along with Desmond.
Desmond alleges only isolated incidences of harassment—two sexist
comments and three remarks possibly related to her disability status. Under
California law, a workplace harassment claim requires harassment “so severe that
it create[s] a hostile work environment.” Lawler v. Montblanc N. Am., LLC, 704
F.3d 1235, 1244 (9th Cir. 2013). “Simple teasing, offhand comments, and isolated
incidents (unless extremely serious)” do not suffice. Dominguez-Curry v. Nev.
Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir. 2005) (citation omitted).

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Desmond also argues that Charter terminated her in violation of public
policy based on her refusal to return to the field without a local government permit.
See Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir. 2017). To
the contrary, the record shows that Charter reassigned her to a new area after the
police incident concerning the permit, she returned to work immediately, and she
made a sale on the same day. There is no evidence that Desmond refused to return
to work without the necessary permits or was fired for such refusal.
Similarly, Desmond contends that Charter breached an implied for-cause
employment contract, but she points to nothing in the record that contradicts
Charter’s significant evidence that she was an at-will employee. The same is true
of her defamation claim. Falsity is a required element of defamation, see Taus v.
Loftus, 151 P.3d 1185, 1209 (Cal. 2007), and no record evidence suggests the
statements she highlights in the report are false.
3. The district court properly rejected Desmond’s final three claims:
violation of the Unruh Act, age discrimination and harassment, and a wage claim,2
for legal or procedural deficiencies. We have already rejected the argument that
the Unruh Act covers disability related employment discrimination claims. See
2 We need not address Desmond’s contentions regarding the wage claim because
she either raised them for the first time on appeal or, as with the other claims,
failed to cite to any specific evidence supporting the wage claim below. See Raich
v. Gonzales, 500 F.3d 850, 868 (9th Cir. 2007).

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Bass v. County of Butte, 458 F.3d 978, 979–83 (9th Cir. 2006) (holding that the
Unruh Act amendments incorporate “only those provisions of the ADA that are
germane to the statute[’s] original subject matter,” i.e., “equal access to public
businesses, facilities, and other accommodations,” not employment); see also
Brennon B. v. Superior Ct., 513 P.3d 971, 989–90 (Cal. 2022) (affirming that
“Bass correctly analyzed Civil Code section 51, subdivision (f)” (citation
omitted)).
As to Desmond’s age discrimination and harassment claims, the district
court correctly concluded that they are barred for failure to exhaust her
administrative remedies. While Desmond’s administrative complaint alleges
Charter’s conduct related to her gender and disability status, her age-related claims
were entirely unrelated to those claims.
AFFIRMED.

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