Tipaksorn Tungjunyatham v. Mike Johanns , 500 F. App'x 686 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TIPAKSORN TUNGJUNYATHAM, No. 11-16170
Plaintiff - Appellant, D.C. No. 1:06-cv-01764-SMS
v.
MEMORANDUM *
MIKE JOHANNS, Secretary of the U.S.
Department of Agriculture Agency,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding **
Submitted June 29, 2012 ***
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Dr. Tipaksorn Tungjunyatham (“Dr. Tung,” as she refers to herself in her
pro se brief), an Asian-Pacific female, appeals the district court’s grant of summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment in favor of the United States Department of Agriculture (“USDA”) on
her claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-16. Dr. Tung also appeals the district court’s grant of summary judgment in
favor of the USDA on her claim that the Agency violated her rights under the
Privacy Act of 1974, 5 U.S.C. § 552a(b). We review a district court’s grant of
summary judgment de novo. Surrell v. California Water Service Co., 518 F.3d
1097, 1103 (9th Cir. 2008). Summary judgment is appropriate when there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). The district court’s grant of summary
judgment may be affirmed “on any ground supported by the record.” Schmidt v.
Contra Costa County, 693 F.3d 1122, 1132 (9th Cir. 2012). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.1
Dr. Tung claims that the district court erred by granting summary judgment
in favor of the USDA on her failure to promote claim. Dr. Tung argues that the
USDA denied her a promotion because of racial discrimination. In a Title VII
disparate treatment case, the plaintiff has the option of responding to a motion for
summary judgment either by showing direct or circumstantial evidence of
1
Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
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discrimination, or by establishing a prima facie case and then proceeding through
the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting
framework set forth in Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027,
1037 (9th Cir. 2005).
To establish a prima facie case, a plaintiff must show that 1) she belongs to a
racial minority; 2) she applied for a position for which she was qualified and the
employer was seeking applicants; 3) she was rejected even though she was
qualified; and 4) that the position remained open and the employer continued to
seek applicants with qualifications similar to those of the plaintiff. McDonnell
Douglas Corp., 411 U.S. at 802. If the plaintiff is unable to prove every element of
her prima facie case summary judgment is appropriate and there is no need to
proceed through the burden-shifting framework. Rissetto v. Plumbers and
Steamfitters Local 343, 94 F.3d 597, 600 (9th Cir. 1996).
The district court properly granted summary judgment in favor of the USDA
on Dr. Tung’s failure to promote claim because Dr. Tung failed to raise a genuine
dispute of material fact as to whether she possessed the necessary skills in poultry
husbandry or disease processes and the requisite ability to effectively communicate
the Agency’s objectives in the position for which she applied. See Rissetto, 94
F.3d at 600 (summary judgment properly entered when plaintiff is unable to satisfy
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the element of her prima facie case); see also Nelson v. Pima Cmty. Coll., 83 F.3d
1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a
factual dispute for purposes of summary judgment.”).
Dr. Tung argues that the district court erred by granting summary judgment
in favor of the USDA on her unlawful retaliation claim. A plaintiff may establish a
prima facie case of retaliation by showing that 1) the plaintiff engaged in protected
activities, 2) the employer subjected the plaintiff to an adverse employment
decision, and 3) there was a causal link between the protected activity and the
employer’s action. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988). “The
causal link may be established by an inference derived from circumstantial
evidence, such as the employer’s knowledge that the employee engaged in
protected activities and the proximity in time between the protected action and the
allegedly retaliatory employment decision.” Id. (internal quotation marks and
alterations omitted). The employee must show that her engaging in the protected
activity was a but-for cause of the adverse employment action she suffered to
satisfy the third prong of the prima facie case. Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1065 (9th Cir. 2002). If the plaintiff is unable to prove every
element of her prima facie case summary judgment is appropriate and there is no
need to proceed through the burden-shifting framework. Rissetto, 94 F.3d at 600.
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Dr. Tung is unable to show a causal link between her protected activity of
filing complaints with the Equal Employment Opportunity Commission (“EEOC”)
and the adverse employment action of being required to attend additional training.
Dr. Tung cannot show the causal link because she presented no evidence to suggest
that the supervisor responsible for assigning her to additional training knew about
the prior EEOC claims. See Jordan, 847 F.2d at 1376. Further, Dr. Tung
presented no evidence to suggest that the timing between the filing of the EEOC
complaints and her assignment to additional training gave rise to an inference of
retaliation. See id. The district court did not err in granting summary judgment to
the USDA on Dr. Tung’s retaliation claim because she was unable to show that her
EEOC activity was the but-for cause in her adverse employment action. See
Villiarimo, 281 F.3d at 1065.
Dr. Tung claims that the district court erred by granting summary judgment
in favor of the USDA on her wrongful termination claim. In order to assert a claim
for wrongful termination based on racial discrimination under Title VII, the
plaintiff must first establish a prima facie case. Wallis v. J.R. Simplot Co., 26 F.3d
885, 889 (9th Cir. 1994). A plaintiff can establish her prima facie case by showing
that she 1) was a member of a protected class; 2) that she was performing her job
in a satisfactory manner; 3) that she was discharged; and 4) that the employer
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sought a replacement with qualifications similar to those of the plaintiff or
continued to need an employee with plaintiff’s skills. See Rose v. Wells Fargo &
Co., 902 F.2d 1417, 1421 (9th Cir. 1990). Summary judgment is appropriate if the
plaintiff is unable to show that she was performing her job in a satisfactory
manner. Rissetto, 94 F.3d at 600.
The district court properly granted summary judgment in favor of the USDA
on Dr. Tung’s wrongful termination claim because the USDA proffered evidence
that Dr. Tung violated several agency rules and exercised poor judgment on the
job, and Dr. Tung failed to raise a genuine dispute of material fact as to whether
she was performing her job in a satisfactory manner. See Rissetto, 94 F.3d at 600(summary judgement properly entered when plaintiff is unable to satisfy the prima
facie element that she was performing her job in a satisfactory manner); see also
Schuler v. Chronicle Broadcasting Co. Inc., 793 F.2d 1010, 1011 (9th Cir. 1986)
(plaintiff’s denial of the credibility of defendant’s evidence and plaintiff’s
subjective personal opinions do not raise a genuine issue of material fact).
Dr. Tung argues that the district court erred by granting summary judgment
in favor of the USDA on her claim that the Agency violated her rights under the
Privacy Act. A successful claim under the Privacy Act requires a showing 1) the
agency disclosed information contained within a system of records; 2) the
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disclosure was improper; 3) the disclosure was intentional or willful, and 4) the
plaintiff was adversely affected by the disclosure. See Swenson v. U.S. Postal
Service, 890 F.2d 1075, 1077 (9th Cir. 1989). The Agency’s disclosure is willful
or intentional if it flagrantly disregards the plaintiff’s rights under the Act. See
Covert v. Harrington, 876 F.2d 751, 756 (9th Cir. 1989).
Dr. Tung cannot show that the disclosure of information was intentional or
willful. Dr. Tung’s representative during her EEOC claim agreed to exchange
information via fax machine with the Agency’s attorney. Pursuant to that
agreement, the Agency’s attorney sent Prehearing documents to Dr. Tung’s
representative via fax machine. Therefore, the district court did not err because a
reasonable trier of fact could not conclude that the information was transmitted
with gross negligence or that the USDA’s representative flagrantly disregarded
Tung’s rights under the Privacy Act by sending the documents via fax machine.
Covert, 876 F.2d at 756, 757.
AFFIRMED.
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