Ardeana Ellis v. Glaxo Smith Kline , 363 F. App'x 481 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARDEANA Q. ELLIS, Nos. 08-35657
09-35208
Plaintiff - Appellant,
D.C. Nos. 3:07-cv-05302-RJB
v. 3:08-cv-05691-BHS
SMITHKLINE BEECHAM MEMORANDUM *
CORPORATION d/b/a
GLAXOSMITHKLINE,
Defendant - Appellee.
Appeals from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Benjamin H. Settle, District Judge, Presiding
**
Submitted January 11, 2010
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that these case are suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
GT/Research
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Ardeana Q. Ellis appeals pro se from two related judgments in her actions
against her former employer. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review summary judgment de novo, and may affirm on any ground supported
by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009).
We affirm.
Summary judgment was proper in Ellis’s first action, appeal No. 08-35657,
because she failed to raise a triable issue of race, gender, or age discrimination as
to either of the claims she raises on appeal.
Specifically, summary judgment was proper on the Title VII retaliation
claim because Ellis did not oppose conduct that was prohibited by Title VII. See
Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (“[T]he opposed
conduct must fairly fall within the protection of Title VII to sustain a claim of
unlawful retaliation.”).
Summary judgment was also proper on the “grant writing” disparate
treatment claim because Ellis failed to raise a triable issue as to whether her
computer problems were the result of defendant’s discriminatory animus. See
Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 664 (9th Cir. 2002)
(affirming summary judgment for employer in discrimination action where
GT/Research 2 08-35657
plaintiff failed to “present[ ] the substantial and specific evidence required to
demonstrate . . . racial discrimination”); see also Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1028-29 & n.6 (explaining the burden-shifting scheme of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and noting that a
plaintiff cannot create a genuine issue of material fact by “relying solely on the
plaintiff’s subjective belief”).
Dismissal of Ellis’s second action, appeal No. 09-35208, pursuant to the
doctrine of res judicata was proper because the earlier action between the parties
resulted in a final judgment on the merits concerning claims arising out of the
employment relationship. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985,
987 (9th Cir. 2005) (“Res judicata applies when the earlier suit . . . (1) involved the
same claim or cause of action as the later suit, (2) reached a final judgment on the
merits, and (3) involved identical parties or privies.”) (citation and quotation marks
omitted).
Further, having introduced the issue of wrongful termination in the first
action, Ellis neither sought a stay to pursue her administrative remedies, nor
included a wrongful termination claim in her second amended complaint. See
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714-15 (9th Cir. 2001)
(“Title VII claims are not exempt from the doctrine of res judicata where plaintiffs
GT/Research 3 08-35657
have neither sought a stay from the district court for the purpose of pursuing Title
VII administrative remedies nor attempted to amend their complaint to include
their Title VII claims.”).
Ellis’s remaining contentions are unpersuasive.
No. 08-35657: AFFIRMED
No. 09-35208: AFFIRMED.
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