Tammy You v. Longs Drug Stores California

FILED
NOT FOR PUBLICATION MAR 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMMY P. YOU, No. 13-15786
Plaintiff - Appellant, DC No. 1:11 cv-0530 SOM
v.
MEMORANDUM*
LONGS DRUG STORES CALIFORNIA
LLC, doing business as Long Drugs;
THOMAS MCKEOWN; JOHN DOES 1-
10; JANE DOES 1-10; DOE
CORPORATIONS 1-10; DOE
UNINCORPORATED ASSOCIATIONS,
INCLUDING PARTNERSHIP 1
THROUGH 10,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted February 17, 2015**
Honolulu Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.
Tammy P. You (“Tammy”1) appeals from the district court’s summary
judgment and award of costs in her employment discrimination action against her
former employer Longs Drug Stores California LLC and former supervisor
Thomas McKeown (together “Defendants”).
Tammy brought claims of unlawful discrimination on the basis of her race,
ancestry, national origin, sex, age, and perceived disability, as well as for
retaliation and intentional infliction of emotional distress. The district court held
that Tammy had failed to exhaust her administrative remedies for her claims based
on the incidents (including her termination) that were not included in an
administrative complaint Tammy had filed with the Equal Employment
Opportunity Commission and the Hawaii Civil Rights Commission several months
earlier. The court next held that Tammy had failed to establish a prima face case
on her remaining claims. The court also awarded costs to Defendants, as the
prevailing parties.
We have jurisdiction under 28 U.S.C. § 1291. We review the grant of
summary judgment de novo, Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155
(9th Cir. 2010), and the award of costs for an abuse of discretion, Champion
1
We refer to plaintiff-appellant by her given name, “Tammy,” in order
to avoid any confusion that might arise by referring to her by her surname, “You,”
which is identical to the personal pronoun, “you.”
2
Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1020 (9th Cir. 2003). We
affirm.
1. Each of the federal and Hawaii employment discrimination statutes
underlying several of Tammy’s claims requires a plaintiff to exhaust administrative
remedies before filing a civil action against an employer for unlawful
discrimination. Tammy’s administrative complaint described only confrontational
encounters with her supervisors during her training period; it did not include her
termination or other encounters that took place several months later. Furthermore,
the termination and other non-included events were not reasonably related to the
events she described in her administrative complaint. See B.K.B. v. Maui Police
Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002), as amended (“Allegations of
discrimination not included in the plaintiff’s administrative charge may not be
considered by a federal court unless the new claims are like or reasonably related
to the allegations contained in the EEOC charge.” (internal quotation marks
omitted)). Accordingly, Tammy did not exhaust her administrative remedies with
regard to her non-included claims, as she was required to do in order to bring
employment discrimination claims in court.
2. The district court did not err in holding that Tammy failed to meet her
burden of establishing a prima facie case for the claims of employment
discrimination and retaliation that were included in her administrative complaint.
3
Tammy did not introduce sufficient evidence showing that there exists a genuine
issue of material fact as to whether Defendants’ actions were adverse employment
actions, or whether Defendants perceived that she had a disability and/or
terminated her for unlawfully discriminatory or retaliatory reasons. Additionally,
Tammy failed to establish a prima facie case of intentional infliction of emotional
distress because the conduct she complained of cannot be characterized as
“outrageous,” “beyond all bounds of decency,” or “utterly intolerable in a civilized
community.” Ross v. Stouffer Hotel Co., 879 P.2d 1037, 1048 n.12 (Haw. 1994)
(quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
3. The district court’s award of costs for filing fees, witness fees,
subpoena costs, and the printing of deposition transcripts was presumptively
permissible under Federal Rule of Civil Procedure 54(d)(1) and the Taxation of
Costs statute, 28 U.S.C. § 1920. Tammy failed to show that the award of
$3,790.44 in costs was unreasonable in light of her employment status and
financial resources. She failed to make any evidentiary showing of her current
employment status or her financial condition. See Save Our Valley v. Sound
Transit, 335 F.3d 932, 946 (9th Cir. 2003) (holding that the losing party bears the
burden of overcoming the presumption of awarding costs to the prevailing party);
Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999) (“[I]t is incumbent
upon the losing party to demonstrate why the costs should not be awarded.”).
4
• ! •
The judgment of the district court and its award of costs are
AFFIRMED.
5