Theresa Garner v. Penny Pritzker , 609 F. App'x 433 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THERESA GARNER, No. 14-15422
Plaintiff - Appellant, D.C. No. 2:12-cv-01330-SRB
v.
MEMORANDUM*
PENNY PRITZKER, Secretary, United
States Department of Commerce,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Theresa Garner appeals pro se from the district court’s summary judgment in
her employment action alleging retaliation and hostile work environment claims
under Title VII. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
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).
novo, Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010), and we
affirm.
The district court properly granted summary judgment on Garner’s
retaliation claim because Garner failed to raise a genuine dispute of material fact
as to whether defendant took any adverse employment action against Garner for
engaging in conduct protected by Title VII. See McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1124 (9th Cir. 2004) (to establish a prima facie case for retaliation
under Title VII, a plaintiff must show that: (1) she engaged in conduct protected by
Title VII; 2) that an adverse employment action was taken against her; and 3) that a
causal link existed between the two events).
The district court properly granted summary judgment on Garner’s hostile
work environment claim because Garner failed to raise a genuine dispute of
material fact as to whether she was subjected to sufficiently severe or pervasive
conduct. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003)
(setting forth elements of a prima facie case for hostile work environment under
Title VII and explaining that courts look at “all the circumstances, including the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance” in determining
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whether conduct violates Title VII); see also McGinest, 360 F.3d at 1113 (“Simply
causing an employee offense based on an isolated comment is not sufficient to
create actionable harassment under Title VII.”).
The district court properly concluded that defendant did not waive any
arguments raised in the motion for summary judgment because Garner had “fair
notice” of these defenses in the Answer. See Simmons v. Navajo County, Ariz.,
609 F.3d 1011, 1023 (9th Cir. 2010) (“The key to determining the sufficiency of
pleading an affirmative defense is whether it gives plaintiff fair notice of the
defense.” (citation and internal quotation marks omitted)). Garner’s arguments
regarding defendant’s waiver of issues on appeal under Fed. R. Civ. P. 12(h) are
unsupported.
We do not consider issues or arguments not specifically and distinctly raised
and argued in the opening brief, or raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Garner’s requests, set forth in her notices filed on August 15, 2014 and
September 24, 2014, are denied.
AFFIRMED.
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