Diana Heilman v. Michael J. Memeo; State of Nevada; James Watson

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Kevin Thomas Duffy, United States District Judge for***
the Southern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANA HEILMAN,
Plaintiff - Appellant,
v.
MICHAEL J. MEMEO; STATE OF
NEVADA; JAMES WATSON,
Defendants - Appellees.
No. 08-16705
D.C. No. 3:04-cv-00683-LRH-
VPC
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 6, 2009**
San Francisco, California
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, ***
District Judge.
FILED
NOV 20 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Diana Heilman appeals from the district court’s grant of summary judgment
on her claims of sex and age discrimination and breach of contract. In the district
court, Heilman challenged the termination of her employment, alleging that her
employer discriminated against her on the basis of sex and age, breached her
employment contract by failing to comply with the pre-termination procedures set
forth in Nevada Revised Statutes § 62.110, and violated other provisions of federal
and state law. After dismissing some claims, the district court granted summary
judgment to defendants on all remaining claims. We have jurisdiction under 28
U.S.C. § 1291. We reverse as to Heilman’s breach of contract claim and remand
for further proceedings on that claim, and affirm as to all other claims.
We review de novo the district court’s grant of summary judgment. Dreiling
v. Am. Online Inc., 578 F.3d 995, 1000 (9th Cir. 2009). We view the evidence in
the light most favorable to the nonmoving party to determine whether any genuine
issues of material fact exist and whether the district court correctly applied the
relevant substantive law. Id.
Heilman resigned from her employment. To prevail on any of her claims,
Heilman must prove that she was terminated. For purposes of Heilman’s federal
claims, a resignation may be involuntary (and therefore qualify as a constructive
termination) if a reasonable person in the employee’s position would have felt

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coerced into resigning and deprived of free choice in the matter, whether or not
intolerable working conditions were at issue. Knappenberger v. City of Phoenix,
566 F.3d 936, 940-41 (9th Cir. 2009). For purposes of her state law claims,
Nevada caselaw similarly provides that a jury may conclude that an involuntary
resignation is equivalent to a termination. See Beales v. Hillhaven, Inc., 825 P.2d
212, 214, 216-17 (Nev. 1992) (implicitly approving trial court’s decision to permit
a plaintiff who resigned her position under the threat of termination to pursue a
wrongful discharge claim).
Heilman has created an issue of fact as to whether her resignation was
voluntary. Heilman’s supervisor demanded her resignation, and she complied.
Her supervisor did not give her an alternative option nor the ability to select the
timing of her resignation. See Knappenberger, 566 F.3d at 941. For purposes of
summary judgment, there is sufficient evidence from which a jury could find that
Heilman was terminated. We therefore proceed to an analysis of Heilman’s claims
stemming from her termination.
The district court determined that Heilman’s breach of contract claim failed
because she was an at-will employee. While we agree that she was an at-will
employee, Heilman’s appointment letter and Nevada law provided that she could
only be terminated in accordance with Nevada Revised Statutes § 62.110. We hold

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that the provisions of the appointment letter, signed by both Heilman and her
employer, are enforceable as a matter of contract. The letter provided in
mandatory language that Heilman could be terminated “only after having been
given the reasons therefore in writing and being afforded an opportunity to be
heard before the judge in answer thereto.” See Nev. Rev. Stat. § 62.110 (Michie’s
2002) (repealed 2004); Hampton v. Wartman, 455 P.2d 921, 922 (Nev. 1969).
It is undisputed that Heilman’s employer failed to follow these procedures.
While neither the contract nor state statute required Heilman’s employer to have
“cause” to dismiss her, she was nevertheless entitled to have the enumerated
procedures followed. See Hampton, 455 P.2d at 922. Accordingly, we reverse the
grant of summary judgment on this claim and remand for further proceedings.
We affirm the district court’s grant of summary judgment on Heilman’s Title
VII sex discrimination and Age Discrimination in Employment Act (ADEA)
claims. For purposes of our analysis, we assume without deciding that the personal
staff exemptions in Title VII and the ADEA do not apply to Heilman’s claims. We
also assume without deciding that Heilman did not abandon her sex discrimination
and age discrimination claims, either before the district court or on appeal.
Heilman’s sex discrimination claim against defendants Memeo and Watson
in their individual capacities fails because a supervisor cannot be held liable in his

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individual capacity for violating Title VII. See Ortez v. Wash. County, 88 F.3d
804, 808 (9th Cir. 1996). Her claim against the other defendants fails because she
has not made out a prima facie case.
To make out a prima facie case of sex discrimination, a plaintiff must
ordinarily show that: (1) she belonged to a protected class; (2) she was qualified
for her job; (3) she was subjected to an adverse employment action; and (4)
similarly situated employees not in her protected class received more favorable
treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006). A plaintiff may also
establish a prima facie case by “providing direct evidence suggesting that the
employment decision was based on an impermissible criterion.” EEOC v. Boeing
Co., 577 F.3d 1044, 1049 (9th Cir. 2009).
Heilman has not shown that similarly situated individuals outside her
protected class were treated more favorably. See Moran, 447 F.3d at 753. She
contends that she need not produce such evidence because her employer
discriminated against her pursuant to an unwritten policy that only applied to
women and embodied invidious sex stereotypes. See Gerdom v. Continental
Airlines, Inc., 692 F.2d 602, 606, 608 (9th Cir. 1982) (en banc); see also Sassaman
v. Gamache, 566 F.3d 307, 313 (2d Cir. 2009) (“When employment decisions are
based on invidious sex stereotypes, a reasonable jury could infer the existence of

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discriminatory intent.”). While evidence of such a policy could be sufficient to
make out a prima facie case of sex discrimination, Heilman has failed to offer facts
in support of her contentions.
Heilman’s age discrimination claim similarly fails. Heilman’s age
discrimination claim against defendants Memeo and Watson in their individual
capacities fails because a supervisor cannot be held liable in his individual capacity
for violating the ADEA. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88
(9th Cir. 1993). Her claim against the Fourth Judicial District Court fails because
the court is immune from suit under the ADEA as an instrumentality of the state.
See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67, 91 (2000).
To make out a prima facie case of age discrimination, a plaintiff must show
that: (1) she was at least forty years old; (2) she was performing her job
satisfactorily; (3) her employment was terminated; and (4) she was 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).
Assuming that defendants Memeo and Watson can be held liable for
violation of the ADEA in their official capacities and therefore be subject to
injunctive relief, her claim against them fails because she has not introduced any

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evidence showing that her replacement had equal or inferior qualifications. See id.
at 1207 & n.2.
Accordingly, we affirm the district court’s grant of summary judgment on
Heilman’s Title VII and ADEA claims.
To the extent Heilman raises any other challenges to the district court’s grant
of summary judgment, those challenges also fail. We reverse the district court’s
grant of summary judgment on the breach of contract claim and affirm the grant of
summary judgment as to all other claims.
AFFIRMED in part, REVERSED in part and REMANDED for further
proceedings. Costs to appellant.

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