Cheri Serlin v. Alexander Dawson School, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERI SERLIN,
Plaintiff - Appellant,
v.
ALEXANDER DAWSON SCHOOL,
LLC, et al.,
Defendants - Appellees.
No. 14-15937
D.C. 2:12-cv-01431-JCM-NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted July 7, 2016**
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges and ANELLO,*** District
Judge.
FILED
JUL 28 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 9th Cir. R. 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 Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.

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Plaintiff-Appellant Cheri Serlin appeals the district court’s grant of summary
judgment in favor of Defendants-Appellees (collectively, “Dawson”) on the
following claims: (1) disability discrimination pursuant to the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and Nevada Revised Statute
(NRS) § 613.330; (2) religious discrimination and hostile work environment based
on religion pursuant to 42 U.S.C. §§ 2000e et. seq. (Title VII) and NRS § 613.330;
(3) retaliation pursuant to Title VII and NRS § 613.340; and (4) age discrimination
under the Age Discrimination and Employment Act (ADEA), 29 U.S.C. § 621, et
seq. and NRS § 613.330. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court properly granted summary judgment in Dawson’s favor
on Serlin’s claim of disability discrimination because Serlin has failed to establish
a sufficient causal connection between Dawson’s decision not to renew her
teaching contract and her disability. Dark v. Curry County, 451 F.3d 1078, 1085
(9th Cir. 2006). First, Serlin has not shown that the ultimate decision maker–her
employer–contemplated her disability when deciding not to renew her contract.
Second, insofar as Serlin’s theory of liability is that her coworkers’ frustration with
frequently having to oversee her classroom due to her disability may be imputed to
her employer, such a causal chain is too attenuated under this Court’s precedents.
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Compare e.g., Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.
2001); Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 874-75 (9th Cir. 1989).
Even assuming Serlin established a prima facie case, Dawson offered
legitimate, nondiscriminatory reasons for choosing not to renew Serlin’s contract,
and Serlin failed to satisfy the burden of demonstrating that those reasons were
pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973);
Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001)
(applying the McDonnell Douglas framework to ADA discrimination cases). We
affirm the district court’s grant of summary judgment in Dawson’s favor on
Serlin’s disability discrimination claim.
2. Regarding Serlin’s religious discrimination claim, Serlin has failed to
demonstrate that her religion (Judaism) was a “motivating factor” in Dawson’s
decision not to renew her contract. See 42 U.S.C. § 2000e-2(m). Serlin’s bare
assertion that Dawson declined to renew other Jewish teachers’ contracts fails to
raise the inference that Dawson chose not to renew Serlin’s contract based on her
religion, particularly where Dawson has cited to neutral reasons for the decision,
and where Serlin’s proffered comparison does not “show a stark pattern of
discrimination unexplainable on [nondiscriminatory grounds]” or account for
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nondiscriminatory variables, as she has provided no information as to the other
teachers’ qualities or Dawson’s reasons for declining to renew their contracts. See
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000). We affirm the
district court’s grant of summary judgment in Dawson’s favor on Serlin’s religious
discrimination claim.
Further, Serlin has failed to show that a coworker’s pattern of referring to
Serlin’s hometown of Skokie, Illinois as the “bagel belt” created a hostile work
environment. Serlin’s coworker’s comments only occurred no more than ten times
in a two year period and were not of a physically threatening or humiliating nature.
The district court was correct in finding that no rational trier of fact could find such
comments sufficiently severe, pervasive, or objectively offensive to give rise to a
claim under Title VII. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71
(2001); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (noting that a
“mere utterance of an ethnic or racial epithet which engenders offensive feelings in
an employee” is insufficient to violate Title VII). We affirm the district court’s
grant of summary judgment in Dawson’s favor on Serlin’s hostile work
environment claim.
3. Regarding Serlin’s retaliation claim, Serlin has not demonstrated that the
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informal complaint she made regarding a coworker’s comments about her was a
but-for cause of Dawson’s decision not to renew Serlin’s contract. See Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (holding that a plaintiff
must show traditional “but-for” causation to succeed on a retaliation claim).
However, the mere fact that Serlin made her complaint three months prior to
Dawson’s decision not to renew her contract is insufficient evidence of causation
in this case. See Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.
2002). Serlin has not provided any other evidence that Dawson relied on her
complaint in deciding not to renew her contract. Further, even assuming Serlin has
established a prima facie case of retaliation, Dawson has articulated legitimate,
nondiscriminatory reasons for the adverse action, and Serlin fails to provide any
evidence that Dawson’s reasons were pretextual. We affirm the district court’s
grant of summary judgment in Dawson’s favor on Serlin’s retaliation claim.
4. Finally, the district court properly granted summary judgment in
Dawson’s favor on Serlin’s claim of age discrimination. Serlin has not produced
sufficient evidence of pretext to rebut Dawson’s proffered, legitimate and neutral
reasons for its decision not to renew Serlin’s contract. As indirect evidence of
pretext, Serlin points to the fact that three other teachers whose contracts were not
renewed were over the age of forty. However, her statistical evidence does not
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suffice to “show a stark pattern of discrimination unexplainable on
[nondiscriminatory grounds],” nor does it account for nondiscriminatory variables.
See Coleman, 232 F.3d at 1283. For example, Serlin has not provided Dawson’s
reasons for the other teachers’ terminations.
Further, the decision makers’ statements that they desired creative and
“dynamic” teachers who have an “energized way of teaching” and who will
integrate technology into lessons are “at best weak circumstantial evidence of
discriminatory animus” based on age. See Nesbit v. Pepsico, Inc., 994 F.2d 703,
705 (9th Cir. 1993) (finding a supervisor’s comment “[we] don’t necessarily like
grey hair” to be insufficient to show discriminatory animus where the comment
“was uttered in an ambivalent manner and was not tied directly to [the plaintiff’s]
termination”). We affirm the district court’s grant of summary judgment in
Dawson’s favor on Serlin’s age discrimination claim.
For the foregoing reasons, Serlin fails to raise a triable issue of material fact
as to any of her claims that are the subject of this appeal.
AFFIRMED.
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