Doris H. Gray, a married woman v. MOTOROLA, INC., a Delaware Corporation

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 Philip M. Pro, United States District Judge for the District***
of Nevada, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DORIS H. GRAY, a married woman,
Plaintiff - Appellant,
v.
MOTOROLA, INC., a Delaware
Corporation,
Defendant - Appellee.
No. 09-17250
D.C. No. 2:07-cv-01466-MHM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted December 10, 2010**
San Francisco, California
Before: HAWKINS and N.R. SMITH, Circuit Judges, and PRO, District Judge.***
FILED
DEC 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

The only statement that comes close to alleging criminal activity is Gray’s1
February 2006 letter which states “Forgery is a crime.” But this statement does
nothing to alert Motorola that Gray believed Motorola’s failure to inform the other
party of the forgery was a violation of any law.
2
Doris Gray (“Gray”) appeals the summary judgment grant in favor of Motorola,
Inc. (“Motorola”) on her claims of retaliation in violation of the Arizona Employment
Protection Act (“AEPA”) and/or Arizona public policy, and age discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”). We affirm.
The district court did not err in granting summary judgment to Motorola on
Gray’s retaliation claim. As the district court noted, Gray’s complaints to Motorola
appeared self-motivated (e.g., wanting her name off the contract, not wanting the
incident to hurt her later in her career, etc.), and she never sufficiently identified to
Motorola a basis for her belief that its actions were unlawful. Even assuming she1
subjectively believed Motorola had some ethical obligation to immediately inform the
contracting party that a forgery had occurred, she lacked an objective, good faith
belief that Motorola’s conduct violated the law. Motorola was actually the victim of
the forgery, which resulted in contract terms more favorable to a third party than
Motorola would ordinarily accept. The company’s conduct in not immediately
informing that party was not unlawful or even unethical, as Motorola possessed a
legitimate defense to the contract and was entitled to explore its options. Moreover,

-- 2 of 4 --

We need not resolve whether, under Arizona law, a claim for wrongful2
termination in violation of public policy survives after the enactment of the AEPA, see
Galati v. America West Airlines, Inc., 69 P.3d 1011, 1015 (Ariz. App. 2003), because
to the extent it does, it would fail for the same reasons Gray’s AEPA claim fails, i.e.,
that she has not identified a public policy that Motorola violated nor did she ever
sufficiently identify one to her employer.
3
Gray also admitted in deposition testimony that she had no reason to believe Motorola
had any intention of not performing under the contract, which Motorola eventually
ratified and re-executed on the same terms. The district court correctly concluded that
Gray could not establish an action under the AEPA or any vital public policy interest
implicated by her complaints to the company. See A.R.S. § 23-1501(3)(c)(ii);2
Murcott v. Best Western Int’l, Inc., 9 P.3d 1088, 1095-99 (Ariz. App. 2000).
Nor did the court err in granting summary judgment to Motorola on Gray’s
ADEA claim. Under the ADEA, Gray had to establish a prima facie case that age was
the “but-for” cause of her termination. Gross v. FBL Fin. Servs., Inc., 129 S. Ct.
2343, 2351 (2009). Although Gray is in the protected class and was part of a
workforce reduction, the circumstances of her termination simply do not give rise to
an inference that age was a factor in the decision, let alone the but-for cause of her
termination. She does not deny that Motorola terminated other Government
Enterprise Mobility Solutions (“GEMS”) attorneys working in single person offices,

-- 3 of 4 --

Motorola allowed two of these attorneys to relocate to a nearby larger office3
where other GEMS attorneys worked–one from Hanover, Maryland, to the D.C. office
and one from Anaheim, California, to the San Diego office. Of the two employees
who were allowed to relocate, one was younger than forty, one was not. As the
district court concluded, it is “hard to see how Motorola’s failure to offer Plaintiff the
same opportunity, i.e., to move, at least part-time, to an office that contained more
GEMS attorneys, constitutes age discrimination when it was offered to both a younger
employee and an employee in Plaintiff’s protected class.”
4
and cannot point to any similarly-situated younger person who was treated more
favorably than others in the protected class.3
AFFIRMED.

-- 4 of 4 --