Barnes v. National Council of Juvenile & Family Court Judges , 548 F. App'x 405 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 06 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PATRICIA BARNES, No. 12-15525
Plaintiff - Appellant, D.C. No. 3:10-cv-00528-ECR-
WGC
v.
NATIONAL COUNCIL OF JUVENILE MEMORANDUM*
& FAMILY COURT JUDGES,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Submitted December 3, 2013**
San Francisco, California
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Patricia Barnes appeals the district court’s grant of summary judgment to the
National Council of Juvenile and Family Court Judges (the Council), a non-profit
*
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).
organization, in her action under the Age Discrimination in Employment Act
(ADEA). Barnes alleged that the Council terminated her employment as an
associate attorney because of her age and in retaliation for her report of bias. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.
1. To establish a prima facie case of an ADEA violation, Barnes must show:
(1) she was at least forty years old;
(2) she was performing her job satisfactorily;
(3) [she was] discharged; and
(4) [she was] either replaced by a substantially younger employee with
equal or inferior qualifications or discharged under circumstances
otherwise giving rise to an inference of age discrimination.
Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (internal
quotation marks and alterations omitted). Barnes failed to establish a prima facie
case under the ADEA. Specifically, Barnes failed to show that “she was
performing her job satisfactorily.” See id.
The record is replete with undisputed evidence that Barnes had a poor
attitude and failed to comply with the Council’s procedures. Barnes (1) admitted
she did not follow her supervisors’ repeated instructions to read the Council’s
grants, which she knew was required to appropriately code her time; (2) ignored
the Council’s attendance, leave, timeliness, and travel policies; and (3) failed to
correct her behavior after her performance evaluation.
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Because Barnes has failed to establish at least one of the elements of a prima
facie case of discrimination, we need not address whether Barnes established that
she was discharged under circumstances otherwise giving rise to an inference of
age discrimination or the remainder of the McDonnell Douglas burden shifting
analysis.
2. Barnes’s retaliation claim is unexhausted. “Subject matter jurisdiction
extends over all allegations of discrimination that either fell within the scope of the
EEOC’s actual investigation or an EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.” B.K.B. v. Maui Police
Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (quoting EEOC v. Farmer Bros. Co.,
31 F.3d 891, 899 (9th Cir. 1994) (internal quotation marks omitted). Barnes did
not claim retaliation in her EEOC complaint nor did the factual basis of her
complaint (a dispute between Barnes and her immediate supervisor) suggest that an
investigation of retaliation would be expected to grow out of the charge. Even if
Barnes presented enough facts to the EEOC that its investigation would have led to
a claim of retaliation, Barnes still fails to show any causal connection between her
complaint and her termination. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1065 (9th Cir. 2002).
AFFIRMED.
3