Alisha Silbaugh v. Pete Buttigieg ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALISHA R. SILBAUGH, an individual, No. 21-35694
Plaintiff-Appellant, D.C. No. 2:17-cv-01759-RSM
v.
MEMORANDUM*
PETE BUTTIGIEG, Secretary of the
Department of Transportation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Submitted May 19, 2022**
Seattle, Washington
Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.
Alisha Silbaugh appeals the district court’s grant of summary judgment in
favor of the U.S. Department of Transportation (DOT) on retaliation claims that
she brought under Title VII and the Rehabilitation Act. We have jurisdiction
*
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).
pursuant to 28 U.S.C. § 1291, and we affirm.
1. Because Silbaugh has not demonstrated that an activity protected under
Title VII or the Rehabilitation Act served as the motivation for her termination, the
district court correctly determined that Silbaugh failed to establish a prima facie
case of retaliation. See 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 794(d) (Rehabilitation
Act incorporating ADA’s prohibition against retaliation). “[R]etaliation claims
require proof that the desire to retaliate was the but-for cause of the challenged
employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352
(2013) (citation omitted). The FAA has consistently maintained that Silbaugh’s
lack of candor was the sole reason for Silbaugh’s termination. Silbaugh’s
proposed termination letter is insufficient to establish that her termination was
driven by a desire to retaliate for the filing of her equal employment opportunity
(EEO) complaint or her participation in the EEO process.
2. Neither Title VII’s participation clause nor the Rehabilitation Act protect
lying during the course of an employer’s internal investigation. See Vasconcelos v.
Meese, 907 F.2d 111, 113 (9th Cir. 1990). The parties do not dispute that Silbaugh
lied about the nature of her relationship and interactions with coworker Kern
during the course of the FAA’s internal investigation, so Vasconcelos controls.
AFFIRMED.
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