Martha Castillo v. Wells Fargo Bank, Na

FILED
NOT FOR PUBLICATION FEB 14 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA CASTILLO, et al., No. 12-16008

Plaintiffs - Appellants, D.C. No. CV 08-653-TUC-RCC

v.
MEMORANDUM
WELLS FARGO BANK, N.A.,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding

Submitted January 16, 2014
San Francisco, California

Before: TALLMAN and IKUTA, Circuit Judges, and GORDON, District Judge.***


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).

The Honorable Andrew P. Gordon, United States District Judge for the District of
Nevada, sitting by designation.
 Plaintiff Martha Castillo appeals the summary judgment entered in favor of

defendant Wells Fargo Bank, N.A., on her discrimination claims. Castillo claimed

that Wells Fargo’s enforcement of its language policy against her was racially

discriminatory, and that Wells Fargo retaliated against her for complaining about the

policy. The district court granted summary judgment on Castillo’s claims on the

bases that (1) Wells Fargo’s enforcement of its language policy against Castillo was

not racially discriminatory; (2) Castillo failed to exhaust administrative remedies as

to her Title VII retaliation claims; (3) Castillo failed to put Wells Fargo on notice of

her § 1981 claims regarding her eventual termination and the denial of her transfer

request; and (4) Castillo’s remaining § 1981 claims lacked merit because the

incidents alleged are not actionable retaliation.

Wells Fargo’s language policy was a “limited, reasonable and business-related

English-only rule” that Wells Fargo enforced against “an employee who can readily

comply with the rule [but] voluntarily chooses not to observe it as a matter of

individual preference.” Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir.

1987). Wells Fargo’s enforcement of its language policy against Castillo was not

racially discriminatory.

As to the retaliation claims, Castillo exhausted her Title VII administrative

remedies because her allegations of discrimination are “like or reasonably related to
the allegations in [her] EEOC charge, or [] fall within the EEOC investigation which

can reasonably be expected to grow out [of] the charge of discrimination.”

Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) (internal quotation

marks omitted); Kaplan v. Int’l Alliance of Theatrical & Stage Employees, 525 F.2d

1354, 1359 (9th Cir. 1975) (EEOC charges must be construed “with the utmost

liberality”). Nevertheless, we may affirm summary judgment on any ground the

record supports. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.

2003) (per curiam).

Castillo failed to put Wells Fargo on notice of her retaliation claims arising

from the denial of her transfer request. Fed. R. Civ. P. 8(a)(2); Pickern v. Pier 1

Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (a plaintiff may not raise new

allegations for the first time in opposition to summary judgment). Her complaint

and moving papers make no mention of the denial of transfer request.1 Thus,

summary judgment was proper on her Title VII and § 1981 claims arising from the

1
Furthermore, Castillo failed to establish a prima facie case of retaliation based
on a denial of transfer. To establish causation, she relies solely on the temporal
proximity between the protected conduct of filing a claim and the denial of transfer,
but the denial took place more than 15 months after the protected conduct. This
lapse of time is too long to give rise to an inference of causation. See Clark Cnty.
Scho. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001); Villiarimo v. Aloha Island Air,
Inc., 281 F.3d 1054, 1065 (9th Cir. 2002).
denial. Only her retaliation claims based on the June 2008 informal discipline were

proper for consideration on their merits.

As to the merits of those claims, the informal discipline was not a materially

adverse action. 42 U.S.C. § 2000e-3(a); McGinest v. GTE Service, Corp., 360 F.3d

1103, 1124 (9th Cir. 2004). Castillo was simply reminded to comply with the

language policy. In addition, Castillo failed to establish that Wells Fargo enforced

its language policy against her because of her protected activities. Id. Finally, Wells

Fargo had legitimate business reasons to enforce the policy, and Castillo did not

establish that those reasons were pretext for retaliation. Id.

AFFIRMED.