NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER RIEMAN,

Plaintiff

- Appellant,

v. EVRAZ, INC. NA, a Delaware corporation,

Defendant

- Appellee. No. 19

- 35617
D.C. No. 3:16

- cv - 02264

- YY

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Youlee Yim You, Magistrate Judge, Presiding Argued and Submitted October 7, 2020

Portland, Oregon Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON, * * District Judge. Jennifer Rieman (“Rieman”) appeals the district court ’ s order granting summary judgment to her former employer, EVRAZ, Inc. (“EVRAZ”) on her claims for violations of the Oregon Fa mily Leave Act (“OFLA”) , Or. Rev. Stat. §

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 

# FILED

MAY 19 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

659A.183, and Oregon’s employment discrimination law , Or. Rev. Stat. §
659A.030. Rieman alleges that EVRAZ impermissibly used her OFLA

- protected
leave as a factor in the decision to terminate her (“OFLA interferen ce claim”) and
further violated Oregon’s employment discrimination law by impermissibly us ing her gender as a “substantial factor” in the decision to terminate her (“gender discrimination claim”). The district court granted summary judgment to EVRAZ
on bo th claims

. We affirm. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo the
district court ’s summary judgment ruling

. Xin Liu v. Amway Corp ., 347 F.3d 1125,
1131

– 32 (9th Cir. 2003).
1. The district court properly granted summary judgment on Rieman’s
OFLA interference claim. 1 We construe a claim like Rieman’s

— that a termination was motivated by an employee’s use of protected leave

— as an “interference” claim, rather than a “retaliation” claim. See Bachelder v. Am. W. Airlines, Inc. , 259 F.3d 1112, 1124 (9th Cir. 2001). Interference claims are not subject to the McDonnell Douglas framework. Id. at 1125. Rather, an employee may prevail on an interference claim by showing, “by a preponde rance of the evidence[,] that her taking of . . . protected leave constituted a negative factor in the decision to

1 In construing OFLA, the Oregon c ourts follow the federal Family and Medical Leave Act of 1993. Yeager v. Providence Heal th System , 96 P.3d 862, 866 ( Or. Ct. App. 2004 ).3

terminate her.” Id. at 1125. Rieman failed to raise a genuine issue of material fact

on whether her use of protected leave was a factor in EVRAZ’s termination
decision. Although a supervisor’s “repeated denials of

. . . leave and comments
about his increased work

- load” and “proximity in time between the leave and [the employee’s] termination” can support an inference that the employee’s use of leave was a factor in her termination, Liu , 347 F.3d at 1137, w e agree with the district

court that the negative comments concerning Rieman’s use of protected leave were
too remote in time from her termination to establish a causal connection

. Further, EVRAZ’s application of its attendance policy to Rieman was not irregular and Rieman’s two proposed comparators were not similarly situated to her

. We also agree with the district court that the declaration by a former human resources specialist was conclusory and failed to raise a triable issue of material fact

. 2. The district court properly granted summary judgment on Rieman’s gender discrimination claim

. We agree with the district court that Rieman failed to satisfy the second and fourth eleme nts of the McDonnell Douglas prima facie

case

— namely, that Rieman failed to meet the minimum qualifications for the position due to her unexcused absenteeism and tardiness, and failed to identify a similarly situated male comparator who was treated more fa vorably. 2 As to the

2 Under the McDonnell Douglas framework, to establish a prima facie case Rieman must show that: (1) she belongs to a protected class; 2) she was qualified for her position and was performing satisfactorily; (3) she experienced an adverse4

second prong, Rieman failed to show that she was performing satisfactorily according to EVRAZ’s legitimate expectations, given her absenteeism. See, e.g., Alamillo v. BNSF Railway Co ., 869 F.3d 916, 920 (9th Cir. 2017). As to the fo urth

prong, her proposed comparator did not accumulate repeated unexcused, unprotected absences and was thus not similarly situated. See, e.g., Leong v.
Potter , 347 F.3d 1117, 1124 (9th Cir. 2003). Because Rieman failed to make out a prima facie case, s he cannot show that her gender was a substantial factor in the
termination decision.

AFFIRMED

.

employment action ; and (4) others similarly qualified but outside the protected class were treated more favorably. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010)

. E VRAZ does not dispute th at Rieman satisfied the first and third elements.