FILED
NOT FOR PUBLICATION JUL 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE M. JOHNSTON, No. 12-16131
Plaintiff - Appellant, D.C. No. 2:10-cv-01067-JRG
v.
MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General, United States Postal Service,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Joseph R. Goodwin, Chief District Judge, Presiding
Argued and Submitted April 11, 2014
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
Anne Johnston appeals the district court’s dismissal of her unlawful
termination claim against Postmaster General Patrick Donahoe. Specifically, she
argues that the district court on summary judgment erred in failing to consider
whether she had been terminated for activity protected under the participation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
clause of Title VII. We may affirm a grant of summary judgment on any ground
supported by the record, Video Software Dealers Ass’n v. Schwarzenegger, 556
F.3d 950, 956 (9th Cir. 2009), and we do so here.
Even assuming that Johnston raised sufficient arguments under the
participation clause such that the district court should have ruled on the issue, and
even assuming that Johnston established a prima facie case of retaliatory
termination at the first step of the three-step, burden-shifting test from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), summary judgment was nonetheless
properly granted because Johnston failed to demonstrate that the nonretaliatory
reasons offered by the United States Postal Service (“USPS”) for her termination
were pretextual.
In the exhibits accompanying the Postmaster General’s motion for summary
judgment, Postmaster Day made clear that Johnston was fired because her
unauthorized possession of photocopies of confidential USPS documents outside
the office resulted in a fundamental breach of trust in the employer/employee
relationship. Moreover, the Notice of Removal issued by USPS noted that
Johnston’s actions violated a number of USPS standards of conduct. In response,
Johnston merely reiterated her allegation that USPS had terminated her
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employment based on “unauthorized possession of postal records,” which
represented “retaliation for engaging in protected activity.”
USPS did not contravene Title VII in terminating Johnston’s employment on
the nonretaliatory bases it proffered, and Johnston failed to refute the legitimacy of
USPS’s actions or show that they were pretextual in nature. See Hashimoto v.
Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (affirming summary judgment where the
employee “establish[ed] a minimal prima facie case of retaliation” under the
participation clause, but “[did] nothing to refute the government’s proferred [sic]
legitimate reasons for disciplining [him]”).
AFFIRMED.
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