Alison Minnis v. State of Washington, Departmen

FILED
NOT FOR PUBLICATION
JAN 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALISON E. MINNIS, No. 13-36079
Plaintiff-Appellant, D.C. No. 3:11-cv-05600-BHS
v.
MEMORANDUM*
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, Division of
Developmental Disabilities; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted December 30, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Alison E. Minnis (“Minnis”) appeals pro se the district court’s grant of
summary judgment for Defendants on Minnis’s claims arising under Title VII, the
*
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).
Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act
(“ADA”), the First Amendment, the Fourth Amendment, and related state law
claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
The district court properly dismissed Minnis’s state law claims because she
did not comply with state statutory procedure. See WASH. REV. CODE ANN.
§ 4.92.100(1) (“All claims against the state, or against the state’s officers[ or]
employees . . . for damages arising out of tortious conduct, must be presented to
the office of risk management”). Under Washington law, “[d]ismissal of an action
for lack of subject matter jurisdiction is required if the tort claim submitted under
chapter 4.92 [of the Revised Code of Washington] does not strictly comply with
the statutory procedure.” Schoonover v. State, 64 P.3d 677, 680 (Wash. Ct. App.
2003) (citing Levy v. State, 957 P.2d 1272, 1276–77 (Wash. Ct. App. 1998)).
Minnis tendered no evidence to the district court that she substantially
complied with Washington state law in filing her tort claims against the state and
its employees. Therefore, the district court properly dismissed her state law tort
claims.
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II
The district court properly granted summary judgment on Minnis’s Title VII
claims that she was terminated in retaliation for EEOC filings and that she was
discriminated against on the basis of age, gender, and disability. “Title VII
retaliation claims require proof that the desire to retaliate was the but-for cause of
the challenged employment action.” U. of Tex. Sw. Ctr. v. Nassar, 133 S. Ct. 2517,
2528 (2013). Separately, to establish a prima facie case of discrimination under
the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), an employee must show “(1) she belongs to a protected class,
(2) she was performing according to her employer’s legitimate expectations, (3)
she suffered an adverse employment action, and (4) other employees with
qualifications similar to her own were treated more favorably.” Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Minnis did not tender evidence
that Defendants’ alleged desire to retaliate was the “but-for” cause of her dismissal
nor did she show that she was performing according to her employer’s legitimate
expectations. As a result, Minnis’s claims fail under both the retaliation provision
of Title VII and the provision banning status-based discrimination. See 42 U.S.C.
§§ 2000e-2, e-3.
Minnis also alleges that she was subject to a hostile work environment and
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disparate treatment. But the facts that she alleges do not raise a genuine question
of material fact such that a reasonable trier of fact could find in her favor on either
claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“When the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment, Title VII is violated.”)
(citations and internal quotation marks omitted); Dominguez-Curry v. Nev.
Transp. Dep’t, 424 F.3d 1027, 1034–6 (9th Cir. 2005). Minnis did not tender
specific facts to support her claim, but rather provided only conclusory allegations
without evidentiary support.
III
The district court properly granted summary judgment on Minnis’s claim
under the FMLA because the state was immune from suit under the Eleventh
Amendment. See Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327,
1336–37 (2012) (holding that there was an insufficient nexus “between self-care
leave and gender discrimination by state employers” to validly abrogate state
sovereign immunity). The district court also properly granted summary judgment
on her claims under Titles I and II of the ADA for the same reason. See Bd. of
Trustees of U. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that Title I
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does not validly abrogate state sovereign immunity); Zimmerman v. Or. Dep’t of
Justice, 170 F.3d 1169, 1184 (9th Cir. 1999) (holding that Title II of the ADA does
abrogate state sovereign immunity, but its protections do not apply to
employment).
IV
The district court properly granted summary judgment on Minnis’s
constitutional claims.
The State was entitled to summary judgment on her prior restraint claim.
Minnis alleges her employer’s assigning her to work from home constituted a prior
restraint on her speech because she was prevented from speaking with co-workers
or clients. In order to constitute a violation of the First Amendment, a public
employee’s speech must be “on a matter[] of public concern.” Pickering v. Bd. of
Educ., 391 U.S. 563, 574 (1968). Here, the alleged suppressed speech only
concerned private grievances. See Roe v. City & Cty. of San Francisco, 109 F.3d
578, 585 (9th Cir. 1997) (holding that speech by public employees about personnel
disputes and grievances is not a matter of public concern).
Minnis’s Fourth Amendment right to privacy claim, founded on an alleged
entry to her office, fails because Minnis offers no evidence that her office was
given over to her exclusive use or that the entry was not work related. See
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Showengerdt v. United States, 944 F.2d 483, 487 (9th Cir. 1991) (holding that in
the context of a government employer, an employee may “enjoy a reasonable
expectation of privacy in areas given over” to her “exclusive use,” except where
there is notice that searches “might occur from time to time for work-related
purposes”). Further, the record indicates that Minnis gave a supervisor permission
to enter the office and pack her belongings.
V
The district court did not abuse its discretion in denying Minnis’s motion to
compel discovery as moot. See, e.g., Draper v. Coombs, 792 F.2d 915, 924 (9th
Cir. 1986) (holding that denying a motion to compel discovery was not an abuse of
discretion even while treating a pro se plaintiff “with great leniency”). Defendants
responded to many of the interrogatories that Minnis sent and the record shows that
the Minnis’s requested answers would not reveal information that would permit her
to win on summary judgment.
AFFIRMED.
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