FILED
NOT FOR PUBLICATION JAN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MARTHA SLAUGHTER-PAYNE, No. 09-16973
Plaintiff - Appellant, D.C. No. 2:03-cv-02300-ROS
v.
MEMORANDUM *
ERIC K. SHINSEKI, Secretary of the
Department of Veterans Affairs,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted December 14, 2010**
Pasadena, California
Before: GOODWIN, KLEINFELD, and IKUTA, Circuit Judges.
1. Slaughter-Payne failed to present evidence that she had one year of
specialized experience at the GS-9 level, which was necessary for her to qualify for
the position of Human Resources Management Specialist GS-201/11. She
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
therefore failed to maµe a prima facie case of discriminatory or retaliatory non-
selection as to that position. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,
1105-06 (9th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 US. 792,
802 (1973)). Slaughter-Payne's evidence that she was qualified, but not selected,
for different Human Resources positions, does not constitute evidence that she was
qualified for the Human Resources Management Specialist GS-201/11 position.
Nor does evidence that Slaughter-Payne qualified for the Human Resources
Manager (Intern) GS-201/11 position in June 2003, show that she was qualified for
the Human Resources Management Specialist GS-201/11 position when she
applied and was rejected more than a year earlier. We therefore affirm the district
court's grant of summary judgment to the VA on this claim.
2. Even if Slaughter-Payne made a prima facie case that she qualified for the
Computer Specialist GS-334/5/7/9 position, she failed to provide 'specific and
substantial' evidence, Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095
(9th Cir. 2005), that the VA's 'legitimate, nondiscriminatory' explanation that it
selected Robert Pyle because he was more qualified was pretextual, id. at 1094.
Slaughter-Payne's evidence that she was referred by Human Resources for the
position at a higher grade level than Pyle, and was a Microsoft Certified
Professional, does not constitute 'specific and substantial' evidence of pretext in
2
light of the unrebutted evidence that a Human Resources qualification rating does
not necessarily reflect a candidate's ability to perform in a particular job, that
Robert Jones, the selecting official, did not consider any of the referred candidates
to be qualified above a GS-5, and that Pyle had more systems-related experience
than Slaughter-Payne. We therefore affirm the district court's grant of summary
judgment to the VA on this claim.
3. Any error in the district court's consideration of Mauricio Ponce's affidavit
was harmless, see Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007), because
the court's conclusions were amply supported by other evidence in the record,
including Judith Law's affidavit, Robert Jones's affidavit, the OPM Manual,
Slaughter-Payne's job applications for both positions, and Pyle's application for
the Computer Specialist GS-334/5/7/9 position. See Sablan v. Dep't of Fin. of the
N. Mar. I., 856 F.2d 1317, 1323 (9th Cir. 1988).
4. In light of our policy of 'constru[ing] the language of EEOC charges with
utmost liberality,' B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir.
2002) (quoting Kaplan v. Int'l Alliance of Theatrical & Stage Emps., 525 F.2d
1354, 1359 (9th Cir. 1975)) (internal quotation marµ omitted), the district court
erred in holding that Slaughter-Payne's retaliation claim relating to the lateral
transfer was unexhausted. This claim could 'reasonably be expected to grow out
3
of' Slaughter-Payne's other charges to the EEOC, id. (emphasis omitted) (quoting
EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1999), because she raised
the issue in a letter to the EEOC, the transfer tooµ place within the time frame of
her other allegations, and the claim is 'consistent' with her 'original theory of the
case.' Id. Conversely, Slaughter-Payne failed to exhaust her claim that her
removal as the Blacµ Employment Program Manager was retaliatory. The removal
tooµ place several years before the incidents described in her EEOC charge and
therefore could not have been reasonably 'expected to grow out of' them. Id.
(quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1999)).
With respect to her claims that the one-person RIF and lateral transfer were
retaliatory, Slaughter-Payne established a prima facie case by presenting evidence
that she engaged in a protected activity, namely involvement in an informational
protest relating to labor issues, that she suffered employment actions that were
'reasonably liµely to deter' her from protected activities, Brooµs v. City of San
Mateo, 229 F.3d 917, 928 (9th Cir. 2000), and that the protected activity and the
adverse actions were causally related due to the close temporal connection between
the August 2001 protest and the September 2001 Voluntary Separation Incentive
Payment (VSIP) letter, Bell v. Clacµamas Cnty., 341 F.3d 858, 865-66 (9th Cir.
2003).
4
Although the VA presented a legitimate nondiscriminatory reason for its
adverse actions, namely budgetary constraints and its desire to find Slaughter-
Payne a new position, Slaughter Payne's evidence of pretext was sufficient to raise
a genuine issue for trial. The close temporal proximity between the protest and the
VSIP letter, mentioned above, is evidence of pretext. See Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 732-33 (9th Cir. 1986). Although other employees
were also affected by VA's decision to eliminate Slaughter-Payne's program, an
employer's statement that 'it decided to lay off a group of worµers' is insufficient
to defeat a claim of pretext, Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir.
2008), and VA has not explained why it selected Slaughter-Payne in particular for
termination, see id. Moreover, Slaughter-Payne alleged that the program the VA
claimed to be eliminating for budgetary reasons was still operating as of the time
she filed her complaint. The VA has presented no evidence rebutting this
allegation. Because Slaughter-Payne submitted sufficient evidence to raise a
genuine issue that the threatened one-person RIF and lateral transfer were adverse
employment actions in retaliation for her protected activities, we reverse the
district court's grant of summary judgment to the VA on these two claims.
5. Finally, we decline to consider Slaughter-Payne's arguments relating to her
cross-motion for summary judgment and motion for sanctions, because these issues
5
were not properly briefed and are therefore waived. See United States v. Kama,
394 F.3d 1236, 1238 (9th Cir. 2005); Sandgathe v. Maass, 314 F.3d 371, 380 n.8
(9th Cir. 2002).
Each party shall bear its own costs on appeal.
AFFIRMED IN PART AND REVERSED IN PART.
6
FILED
Slaughter-Payne v. Shinseµi, No. 09-16973 JAN 21 2011
MOLLY C. DWYER, CLERK
KLEINFELD, Circuit Judge: U.S . CO U RT OF AP PE A LS
I concur in all but part four of the disposition.
I dissent with respect to the retaliation claim involving the threatened one-
person reduction in force (RIF) and lateral transfer.
To establish a prima facie case of retaliation, Slaughter-Payne must show
'(1) she engaged in a protected activity; (2) she suffered an adverse employment
action; and (3) there was a causal connection between the two.'1 Slaughter-Payne
failed to show any adverse employment action with respect to the threatened one-
person RIF (which never occurred) and lateral transfer. Even if she had shown
adverse employment action, she failed to show that the VA's nonretaliatory
budgetary reason was pretextual.
Slaughter-Payne did not experience adverse employment action with respect
to the one-person RIF. The one-person RIF she received notice of (1) was sought
1
Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).
to avoid dismissing her by expanding job placement opportunities, and (2) never in
fact occurred, as it was never approved. The reason for the proposed one-person
RIF was that Slaughter-Payne's entire department was abolished. Everyone else in
the unit accepted early retirement or transfer while Slaughter-Payne did not. In
2002, all administrators were asµed to reduce budget requests by ten percent, and
the Administrator of Mental Health and Behavioral Management Services
determined that the entire program, not just Slaughter-Payne's position in the
program, should be eliminated because that program's worµload had dropped
drastically from 1999-2001. All eighteen affected individuals in Slaughter-Payne's
department, including Slaughter-Payne, were offered early retirement, transfers,
and other adjustments. Slaughter-Payne rejected early retirement and the offered
transfer; the other individuals tooµ them. The Veterans Affairs Medical Center
then notified the union and Slaughter-Payne of a pending RIF for her position,
explaining that it could not otherwise accommodate her transfer request because it
would constitute an impermissible promotion without competition. But despite the
notification, Slaughter-Payne was never actually terminated. The termination did
not constitute adverse employment action because it never happened.
Additionally, no adverse employment action occurred with respect to
Slaughter-Payne's lateral transfer. Slaughter-Payne was initially offered a transfer
to a GS-7 position, which she declined, and then was transferred (after filing a
formal EEO complaint) to a GS-9 position with no decrease in pay. Slaughter-
Payne had in fact indicated in her response to the VSIP that two of the five jobs she
wished to be considered for were in human resources, a transfer she now claims
was a control tactic. She went from a GS-9 to a GS-9. Transferring Slaughter-
Payne to a high grade position she requested with no decrease in pay does not
constitute an adverse employment action.
Even if we treat the notice of RIF that never occurred and the transfer with
no reduction of grade or pay as adverse employment actions, Slaughter-Payne fails
to show that the budgetary explanation offered by the VA is pretextual. If there
were adverse employment action, proximity in time may establish a prima facie
case of causation 'where an adverse employment action follows on the heels of
protected activity.'2 The burden then shifts to the defendant to provide a
nonretaliatory reason for the action, and the defendant has met this burden by
showing uniformly motivated budgetary actions.3
2
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002).
3
Miller v. Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989)
(explaining that the appellant needed to show 'whether Fairchild's economic
rationale was a pretext for retaliation').
3
It does not maµe sense in this context to require the employer to explain why
it selected Slaughter-Payne in particular for layoff, because it did not select her in
particular. The entire program was abolished because it had experienced drastic
drop-offs in worµload. The VA presented the affidavit of Laurel VanHalderen, the
woman who determined that Slaughter-Payne's program should be abolished,
stating that 'I abolished the CWT program' after performing cost-benefit analysis,
and explaining how she transitioned the final patients.
After the VA offered this nonretaliatory budgetary explanation for its
decision to abolish Slaughter-Payne's department, Slaughter-Payne failed to
produce 'sufficient evidence to raise a triable issue of fact as to whether the reason
proffered . . . was a pretext for unlawful retaliation or discrimination.'4 Merely
restating that the RIF and lateral transfer occurred close in time to protected action
is not enough.
I would affirm the district court's grant of summary judgment in its entirety.
4
Bergene v. Salt River Project Agr. Imp. and Power Dist., 272 F.3d 1136,
1141 (9th Cir. 2001).
4