NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA MORRIS,

Plaintiff

- Appellant,

v. CHARTER COMMUNICATIONS, INC., a Delaware corporation; et al.,

Defendants

- Appellees. No. 18

- 55739
D.C. No. 2:17

- cv - 01725

- PSG

- AGR

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding Argued and Submitted December 11, 2019 San Francisco, California Before: SCHROEDER, FRIEDLAND, and R. NELSON, Circuit Judges. Cynthia Morris appeals the district court’s grant of summary judgment in favor of her former employer Time Warner Cable , Inc. (“TWC”) on her claim under the California Fair Employment and Housing Act ( “ FEHA ” ). Morris contends that TWC violated the FEHA by terminating her in retaliation for her reporting that her supervisor had made a comment that she and her co - workers

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

- 3. 

# FILED

DEC 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

perceived as very racially offensive

. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo the district court’s grant of summary judgment, Smith v. Clark Cty. Sch. Dist. , 727 F.3d 950, 954 (9th Cir. 2013), w e affirm. The FEHA ’s anti

- retaliation provision makes it unlawful “[f]or any employer

. . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part

. . . .” Cal. Gov’t Code § 12940(h). FEHA retaliation claims are analyzed under the burden

shifting framework se t forth in McDonnell Douglas Corp

. v. Green , 411 U.S. 792 , 802

- 05 (1973). See Yanowitz v. L ’ Oreal USA, Inc. , 116 P.3d 1123, 1130 (Cal. 2005). Under this framework, the employee bears the initial burden of establishing a prima facie case of retaliation. Id. “Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action.” Id. If the employer does so, the burden shifts back to the employee to show that the employer ’s proffered reason is a pretext for intentional retaliation. Id. Assuming without deciding that Morris establishe d a prima facie case of retaliation, we conclude that her claim fails at the final step of the McDonnell Douglas analysis. TWC provided a f acially legitimate justification for terminating Morris

. A n audit, initiated b efore she firs t reported her supervisor’s comment, revealed that Morris had been entering multiple work orders on single transactions ,3

which artificially inflate d her commissions in violation of company policy

. Morris has not produced “‘specific’ and ‘substantial’” evidence show ing th at this justification for termination is “unworthy of credence , ” such that a trier of fact could reasonably co nclude TWC ’s proffered justification was a pretext for retaliat ion

. See Winarto v. Toshiba Am. Elecs. Components, Inc. , 274 F.3d 1276, 1284 (9th Cir. 2001) (quoting Godwin v. Hunt Wesson, Inc. , 150 F.3d 1217, 122 0

- 2 2 (9th Cir. 1998)). Morris has produced some circumstantial evidence s howing that TWC did not enforce its policy against fraudulent sales practices with perfect consisten cy
. For example, two of Morris’s co

- workers stated that they on occasion submitted multiple work orders for individu al transactions but were never reprimanded for doing so

. But a ny inference of pretext drawn from Morris’s evidence is undercut by the fact that TWC began the audit that uncovered Morris’s manipulation of her sales records weeks before her supervisor made the offending comment. That audit focused on Morris not because she had engaged in protected activity under the FEHA, but rather because her co - workers had reported suspicions about her sales figures to her immediate supervisor

. Indee d, Morris admits that before the audit, she had already “received a final warning for dishonesty” from TWC for manipulating customer surveys , which may explain why TWC acted quickly in4

terminat ing her once it concluded that she had violated company policy again

. Further weaken ing any inference of retaliatory intent is evidence t hat TWC has fired a t least ten other employees for manipulating sales records liked Morris did, none of whom engaged in protected activity , a nd that TWC did not fire two of Morris’s co

- workers who also reported the same comment made by their supervisor

. Because Morris did not meet her burden to prove that TWC’s proffered reason for t erminat ing her was “unworthy of credence” and was in fact pretext for retaliat ory animus, Winarto , 274 F.3d at 1284, the district court correctly granted summary judgment against her.
AFFIRMED.