Barbara Blanchard v. Ray Lahood

FILED
NOT FOR PUBLICATION DEC 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BARBARA BLANCHARD, No. 10-55524
Plaintiff-Appellant, D.C. No. CV-07-07921-DDP-FFM
v.
MEMORANDUM *
RAY H. LAHOOD, Secretary of the
United States Department of
Transportation, Federal Aviation
Administration, FLOR RAMOS,
individually and in his capacity as Director
of a Division in the FAA,
Defendants-Appellants.
Appeal from the United States District Court
Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted November 18, 2011 **
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, District
*
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).
Judge.***
Barbara Blanchard appeals the district court’s entry of summary judgment in
favor of Defendant United States Department of Transportation, Federal Aviation
Administration (“the Department”) and FAA Director Flor Ramos, on her claims for
retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e–3(a), and failure to accommodate under the Rehabilitation Act of 1973, as
amended, 29 U.S.C. §§ 701 et seq. We have jurisdiction pursuant to 28 U.S.C. §
1291. We affirm.
We review the district court’s grant of summary judgment de novo, drawing all
reasonable inferences in favor of Blanchard, the non-movant. See Zeinali v. Raytheon
Co., 636 F.3d 544, 547 (9th Cir. 2011). Summary judgment is appropriate if the
moving party establishes “that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).
A plaintiff must prove the following in order to establish a prima facie case of
retaliation: (1) she engaged in a protected activity; (2) she was subjected to an adverse
employment action by her employer; and (3) there was a causal link between the two
events. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). If
the plaintiff meets her burden, the burden then shifts to the defendant to articulate a
***
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
2
legitimate, non-discriminatory reason for the challenged action. See id. If the
defendant satisfies its burden, the plaintiff then must produce evidence tending to
show that the asserted reasons were a pretext for retaliation. See id.The district court concluded Blanchard could not establish that there was a
causal connection between her 2003 Equal Employment Opportunity (EEO) complaint
and any retaliatory actions.
We agree with the district court’s determination that the lapse of time between
the EEO complaint and the adverse actions at issue was too tenuous. Ramos did not
meet Blanchard until November of 2004, almost one year after Blanchard’s EEO
complaint was resolved. He did not become her supervisor until October of 2005.
Blanchard correctly argues that it is causation, and not temporal proximity
alone, which is an element of a plaintiff’s retaliation claim. See Porter v. California
Dept. of Corrections, 419 F.3d 885, 894-95 (9th Cir. 2005). However, Blanchard
offers nothing more than speculation in arguing that there is a causal connection
between her protected activity and any adverse employment actions. Therefore, we
conclude that Blanchard is unable to assert a prima facie case of retaliation.
“To state a prima facie case under the Rehabilitation Act, a plaintiff must
demonstrate that (1) she is a person with a disability, (2) who is otherwise qualified
for employment, and (3) suffered discrimination because of her disability.” Walton
v. U.S. Marshals Service, 492 F.3d 998, 1005 (9th Cir. 2007). “[A]n individual is
3
disabled if that individual (1) has a physical or mental impairment that substantially
limits one or more of the individual’s major life activities; (2) has a record of such an
impairment; or (3) is regarded as having such an impairment.” Coons v. Sec’y of U.S.
Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (citations omitted).
An employer discriminates against an employee by “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee, unless [the employer]
can demonstrate that the accommodation would impose an undue hardship on the
operation of the business of [the employer].” Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1089 (9th Cir. 2002) (quoting 42 U.S.C. § 12112(b)(5)(A)).
Blanchard appears to claim that the denial of her requests for advanced sick
leave constituted a failure to provide a reasonable accommodation. Because
Blanchard declined to provide additional information about her medical condition
upon request, we disagree. The record establishes that each of Blanchard’s requests
for accrued annual and sick leave, as well as leave without pay, were approved. We
conclude there is no genuine dispute regarding whether Blanchard’s employer
discriminated against her on the basis of a disability.
Although Blanchard now argues that the Department failed to initiate and
engage in the required interactive process, she acknowledges that she did not raise the
issue before the district court. We generally do not consider issues raised for the first
4
time on appeal. See Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002).
AFFIRMED.
5