Tabitha Totah v. Lucasfilm Entertainment Co.

FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TABITHA TOTAH, No. 11-15710
Plaintiff - Appellant, D.C. No. 3:09-cv-04051-MMC
v.
MEMORANDUM *
LUCASFILM ENTERTAINMENT
COMPANY, LTD,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted November 7, 2012
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
Tabitha Totah appeals the district court’s grant of summary judgment in her
sex discrimination suit against her former employer, Lucasfilm Entertainment Co.
Totah sought relief under Title VII and California’s Fair Employment and Housing
Act based on theories of sexual harassment, disparate treatment, and retaliation.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review the grant of summary judgment de novo. Vasquez v. Cnty. of
L.A., 349 F.3d 634, 639 (9th Cir. 2004). In so doing, we review the record that was
before the court that granted summary judgment. See Cornwell v. Electra Cent.
Credit Union, 439 F.3d 1018, 1027–28 (9th Cir. 2006). In the exercise of sound
discretion we may permit novel legal arguments on appeal. Hesse v. Sprint Corp.,
598 F.3d 581, 590 (9th Cir. 2010).
The parties are familiar with the facts. After the district court granted
summary judgment, Totah filed a motion for reconsideration. In her motion, Totah
made several arguments for the first time, which she now repeats on appeal. First,
Totah alleged that the meeting in which her supervisors informed her of complaints
about her conduct was itself a form of harassment. Second, Totah argued that her
phone call to a business partner was protected opposition activity for the purposes
of her retaliation claim. The district court denied Totah’s motion for
reconsideration. The legal arguments that Totah raised for the first time in her
motion for reconsideration were not adequately preserved on appeal. Self-
Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902,
912 (9th Cir. 1995).
The district court granted summary judgment on Totah’s sexual harassment
claim because the allegedly offensive conduct was not sufficiently severe or
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pervasive to create a hostile work environment. We have reviewed the record and
hold that although the comments Totah complains of were certainly offensive,
Totah has failed to raise a triable issue of fact as to whether these incidents so
polluted her workplace that they altered the conditions of her employment. See
Manatt v. Bank of Am., NA, 339 F.3d 792, 798–99 (9th Cir. 2003).
Totah alleges that the district court erred in rejecting her disparate treatment
claim. However, she only offered evidence of alleged disparate treatment of one
male supervisor who did not have a similar job and did not engage in conduct of
comparable seriousness to that of Totah. See Vasquez, 349 F.3d at 641. Her
disparate treatment claims were properly dismissed by the district court.
Totah contends that the district court erred in denying her retaliation claims.
However, she did not establish a causal link between her purported protected
opposition activity and her termination. Accordingly, Totah failed to allege a prima
facie case of retaliation. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th
Cir. 2000). Moreover, she did not present a genuine issue of material fact showing
that Lucasfilm’s explanation that she was fired for insubordination was mere
pretext. See Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004).
Finally, Totah challenges the magistrate judge’s order denying her discovery
request for information relating to another Lucasfilm employee. Totah failed to file
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timely objections to the magistrate’s order. See Fed. R. Civ. P. 72(a). Thus, she is
barred from objecting to the order on appeal. Simpson v. Lear Astronics Corp., 77
F.3d 1170, 1173–74 (9th Cir. 1996).
Nothing in the record justifies reversal.
AFFIRMED.
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