Mila Washington v. Patrick Donahoe ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILA B. WASHINGTON, No. 16-15798
Plaintiff-Appellant, D.C. No. 2:13-cv-02444-SPL
v.
MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted June 8, 2017**
Pasadena, California
Before: BEA and HURWITZ, Circuit Judges, and KOBAYASHI,*** District
Judge.
Mila Washington asked the United States Postal Service (“USPS”) to shorten
*
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 Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
her work day during her pregnancy, but still pay her for a full day. USPS initially
allowed Washington to take “personal absence time” for hours not worked, but later
reclassified this time off as unpaid Family and Medical Leave Act (“FMLA”) leave.
That reclassification required Washington to use her accumulated paid leave hours
to receive pay for the unworked hours. In this suit, Washington alleges gender and
pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964.1
The district court granted USPS’s motion for summary judgment. We have
jurisdiction of Washington’s appeal under 28 U.S.C. § 1291 and affirm, because
Washington failed to provide direct or circumstantial evidence of disparate treatment
based on her pregnancy or gender. Young v. United Parcel Serv., Inc., 135 S. Ct.
1338, 1345 (2015).
1. Washington claims that USPS improperly denied her 4.61 hours of
personal absence time and reclassified 99.03 hours of personal absence time as
FMLA sick leave. But, under USPS’s personal absence time policy, USPS managers
are permitted to “require the use of . . . sick leave in the case of partial-day absences
for FMLA-covered conditions,” which includes absences caused by pregnancy
complications. Therefore, USPS’s denial and reclassification of personal absence
1
Although Washington’s complaint also alleged race discrimination, she failed
to argue this claim either in response to USPS’s motion for summary judgment or
on appeal. “Because this argument was not raised clearly and distinctly in the
opening brief, it has been waived.” McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th
Cir. 2009).
2
time do not by themselves “prove[] the fact of discriminatory animus without
inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998) (internal quotation marks omitted, alteration incorporated).
Nor did Washington “offer evidence that gives rise to an inference of unlawful
discrimination.” Hawn v. Exec. Jet. Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010)
(internal quotation marks omitted, alteration incorporated). She failed to show that
similarly situated non-pregnant employees were treated more favorably in the
provision of personal absence time, or that any “other circumstances surrounding”
USPS’s denial and reclassification of personal absence time, which were allowed
under USPS policy, permit “an inference of discrimination.” Id. at 1156 (internal
quotation marks omitted).
2. Washington claims that USPS denied her call-in request for 8 hours of paid
sick leave. But, she provided no direct evidence of discrimination, nor does she
identify any similarly situated, non-pregnant employees who called in for sick leave
and received it, or describe circumstances from which one could infer
discrimination. See id.
3. Washington claims that USPS improperly revoked its original
accommodation which allowed her to work less than 8 hours a day. But it is
undisputed that Washington worked less than 8 hours daily from April 11 to August
23, 2012, was paid for full 8-hour days during that period, and was given FMLA
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leave going forward. That USPS did not charge this leave as personal absence time
does not mean it denied Washington a work accommodation. And, Washington
identifies no similarly situated employees who were so accommodated. Young, 135
S. Ct. at 1354.
4. Washington claims that USPS subjected her to an investigation for
requesting a pregnancy accommodation. The investigation “did not materially affect
the compensation, terms, conditions, or privileges of [Washington’s] employment”
and thus did not constitute an adverse employment action. Chuang v. Univ. of Cal.
Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000). And, Washington provided
no evidence that the investigation, which was initiated because of suspected
timekeeping fraud, was discriminatory.
AFFIRMED.
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