Hellman v. Weisberg

FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUZ HELLMAN, No. 08-15059
Plaintiff - Appellant, DC No. CV 06-1465 FJM
v.
MEMORANDUM *
SHELDON WEISBERG; STATE OF
ARIZONA,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted December 8, 2009
San Francisco, California
Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.
Plaintiff Luz Hellman, a former judicial assistant at the Arizona Court of
Appeals, appeals the district court’s order granting summary judgment to
defendants Sheldon Weisberg, former Chief Judge of the Arizona Court of
Appeals, and the State of Arizona. Hellman claims that she was retaliated against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for participating in the investigation of a discrimination claim made by a former
law clerk at the Arizona Court of Appeals. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
As a preliminary matter, we hold that Hellman’s notice of appeal was timely.
The district court clerk’s office was closed on the day her notice of appeal was
originally due. Thus, the office was “inaccessible” within the meaning of Federal
Rule of Appellate Procedure 26(a)(3). See Keyser v. Sacramento City Unified Sch.
Dist., 265 F.3d 741, 747 (9th Cir. 2001). The availability of electronic filing does
not change this result. The inaccessibility clause, as it existed when Hellman’s
notice of appeal was filed, was added to Rule 26 in 1989, long before the advent of
electronic filing. See Fed. R. App. P. 26, cmt. (1989). The clause was therefore
not intended to distinguish between filings in electronic and physical form.
Congress has acknowledged as much, recently updating the rule to address more
clearly the existence of electronic filing. See Fed. R. App. P. 26, cmt. (Dec. 1,
2009). Accordingly, Hellman’s notice of appeal, filed January 2, 2008, was timely,
and we may exercise jurisdiction over this case.
We review de novo a district court’s order granting summary judgment.
Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004).
We must determine, viewing the evidence in the light most favorable to Hellman,
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whether there are any genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. See Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004).
To establish her claim of retaliation under Title VII, Hellman was required
to prove that “(1) [she] engaged in a protected activity, (2) she suffered an adverse
employment action, and (3) there was a causal link between the protected activity
and the adverse employment action.” Davis v. Team Elec. Co., 520 F.3d 1080,
1093-94 (9th Cir. 2008). We need not decide whether Hellman engaged in
protected activity in this case, because we agree with the district court that Hellman
did not establish that she suffered an adverse employment action.
Under Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53(2006), an action constitutes an adverse employment action only if it is “materially
adverse,” meaning that it would “dissuade[] a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68 (internal quotation marks
omitted). As the Court has often stated, Title VII “does not set forth a general
civility code for the American workplace.” Id. (internal quotation marks omitted).
Thus, not every disagreeable workplace action constitutes retaliation; rather,
retaliation must produce “an injury or harm.” Id. at 67. None of the actions
Hellman identifies rises to this level of severity.
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Hellman’s major complaint concerns the snubbing she received from fellow
coworkers. This court has previously held that ostracism by coworkers does not
constitute an adverse employment action, at least where it does not have an effect
on the employee’s ability to perform her job. Brooks v. City of San Mateo, 229
F.3d 917, 929 (9th Cir. 2000) (“[O]stracism suffered at the hands of coworkers
cannot constitute an adverse employment action.”); Manatt v. Bank of Am., NA,
339 F.3d 792, 803 (9th Cir. 2003); cf. Davis, 520 F.3d at 1090 (holding that
ostracism constituted an adverse employment action where employee’s ban from
“an important area of the workplace” contributed to a material change in the terms
and conditions of her employment). The ostracism Hellman suffered was mostly
social in nature; aside from the effects of the snubbing on her enjoyment of her
work environment, there is no evidence that the snubbing went so far as to interfere
with her job responsibilities. Accordingly, any ostracism Hellman experienced did
not rise to the level of an adverse employment action. See Burlington, 548 U.S. at68 (citing with approval assertion that “snubbing by supervisors and co-workers
[is] not actionable under § 704(a)” (internal quotation marks omitted)).
Similarly, the fact that Hellman was informed that Judge Weisberg wanted
to fire her and have her criminally prosecuted is insufficient to support her Title
VII claims. It is undisputed that Hellman was never fired or prosecuted, and the
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mere threat of termination does not constitute an adverse employment action. See
Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1189 (9th Cir. 2005), amended by 433
F.3d 672 (2006), and 436 F.3d 1050 (2006) (finding that “snide remarks” about
harassment claim and thinly veiled threats were not enough to constitute
retaliation).
Finally, the reprimand Hellman received from her boss, Judge Kessler, also
did not constitute an adverse employment action. The one-time verbal reprimand
had no effect on her job duties and was not placed in her personnel file. Especially
given Judge Kessler’s otherwise supportive attitude, his reprimand did not rise to
the level of adverse employment action.
Hellman’s First Amendment claim against the State of Arizona fails for
similar reasons. To establish her First Amendment claim, Hellman was required to
show that: “1) [she] engaged in constitutionally protected speech; 2) [her]
employer took ‘adverse employment action’ against [her]; and 3) [her] speech was
a ‘substantial or motivating’ factor for the adverse action.” Marable v. Nitchman,
511 F.3d 924, 929 (9th Cir. 2007).
As above, we conclude that Hellman did not suffer an “adverse employment
action” sufficient to support her claim that her First Amendment rights were
violated. To begin with, the test of adverse employment action in the First
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Amendment context is substantially similar to the test under Title VII. See
Coszalter v. City of Salem, 320 F.3d 968, 975-76 (9th Cir. 2003) (holding that the
allegedly retaliatory action must “deter the exercise of First Amendment rights”).
Further, the purportedly retaliatory actions Hellman experienced – social
ostracism, threat of termination, and a reprimand from Judge Kessler – are similar
to those that we deemed insufficient to support a First Amendment retaliation
claim in Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998). See
Coszalter, 320 F.3d at 976 (“The essential holding of Nunez is simply that when an
employer’s response includes only minor acts, such as ‘bad-mouthing,’ that cannot
reasonably be expected to deter protected speech, such acts do not violate an
employee’s First Amendment rights.”).
The district court did not err in granting summary judgment to defendants.
The judgment of the district court is therefore AFFIRMED.
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