Stacey Moody v. County of San Mateo , 405 F. App'x 250 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 13 2010
MOLLY C. DWYER, CLERK
STACEY MOODY, No. 10-15118 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 3:08-cv-01864-MMC
v.
MEMORANDUM*
COUNTY OF SAN MATEO;
LAURENCE GAINES; RON SALAZAR,
DOES 1-10, INDIVIDUALLY,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted November 29, 2010
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
Stacey Moody appeals the district court’s grant of summary judgment in
favor of her employer, San Mateo County. We affirm. Because the parties are
familiar with the factual and procedural history of the case, we need not recount it
here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
The district court did not abuse its discretion in precluding Moody from
expanding the scope of her hostile work environment claim after the close of
discovery to include new conduct. Although she was aware of the alleged conduct
when she filed this action, she did not allege it in her complaint, nor rely on it on
later responses to the County’s interrogatories. The district court determined that
expanding the scope of Moody’s claims would delay the proceedings and disrupt a
schedule on which the parties had been relying for over a year. Under these
circumstances, the district court acted within its discretion in limiting the scope of
her claim. See Acri v. Int’l Ass’n of Machinists & Aerospace Workers, 781 F.2d
1393, 1398 (9th Cir. 1986) (“[L]ate amendments to assert new theories are not
reviewed favorably when the facts and the theory have been known to the party
seeking amendment since the inception of the cause of action.”).
Moody’s remaining allegations are insufficient to support a prima facie case
of hostile work environment. The offensive comments occurred four years apart
and were not severe or pervasive enough to create a triable issue of fact. See, e.g.,
Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642-43 (9th Cir. 2004) (affirming
summary judgment on hostile work environment claim where plaintiff’s primary
claim arose from statements made more than six months apart). The district court
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did not err in granting summary judgment for the County on Moody’s hostile work
environment claim.
II
The district court properly granted summary judgment on the gender
discrimination claim. In response to Moody’s prima facie showing that she was
not promoted because of her gender, the County articulated a “legitimate, non-
discriminatory reason for its action.” Dominguez-Curry v. Nev. Transp. Dep’t, 424
F.3d 1027, 1037 (9th Cir. 2005). In response, Moody failed to establish a triable
issue of fact as to pretext surrounding the County’s reasons for not selecting her for
the position. The district court did not abuse its discretion in allowing the County
to submit a declaration in response to new allegations made by Moody in her reply
brief. Absent evidence of pretext, the district court appropriately granted summary
judgment on the gender discrimination claim.
III
The district court properly granted summary judgment on Moody’s
retaliation claim. Even if we assume, arguendo, that Moody had engaged in
protected activity, Moody did not tender evidence of a “causal link” between her
activity and the adverse employment decision. Vasquez, 349 F.3d at 646.
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Therefore, the district court properly concluded that she had not established a
prima facie case of retaliation.
AFFIRMED.
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