FILED
NOT FOR PUBLICATION APR 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LORI MCGRATH, ) No. 09-15820
)
Plaintiff – Appellant, ) D.C. No. 3:07-CV-00292-LRH-VPC
)
v. ) MEMORANDUM *
)
STATE OF NEVADA )
DEPARTMENT OF PUBLIC )
SAFETY, )
)
Defendant – Appellee. )
)
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted March 11, 2010 **
San Francisco, California
Before: FERNANDEZ, THOMAS, and CALLAHAN, Circuit Judges.
Lori McGrath appeals from the district court’s judgment and asserts that the
district court erred when it granted summary judgment against her and in favor of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
the State of Nevada, Department of Public Safety, Nevada Highway Patrol
(“NHP”). We affirm.
(1) McGrath asserts that the district court erred when it determined that
she had not spelled out a prima facie case for retaliation pursuant to the retaliation
provisions of Title VII1 for events before she filed a complaint with the Nevada
Equal Rights Commission and EEOC (collectively “NERC”) in January of 2002.
We disagree. McGrath could not spell out a case unless NHP subjected her to an
adverse employment action after she had engaged in a protected activity. See
Nilsson v. City of Mesa, 503 F.3d 947, 953–54 (9th Cir. 2007). The record shows
that prior to the 2002 filing she had not opposed any alleged discriminatory
practice by NHP. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d
1185, 1197 (9th Cir. 2003); see also Crawford v. Metro. Gov’t of Nashville &
Davidson County, 129 S. Ct. 846, 850, 172 L. Ed. 2d 650 (2009). That, by the
way, includes her claim that the State Attorney General refused to represent her in
an action filed against her.2
1
See 42 U.S.C. § 2000e–3.
2
That claim would also be barred because she never did file a complaint
about it with the appropriate agency. See B.K.B. v. Maui Police Dep’t, 276 F.3d
1091, 1099–1100 (9th Cir. 2002); Vasquez v. County of Los Angeles, 349 F.3d
634, 644 (9th Cir. 2004). Moreover, the final decision of the Attorney General was
(continued...)
2
(2) McGrath also claims that the district court erred in determining that
she was not retaliated against after she filed complaints with NERC. She claims
retaliation because an officer, who had asked her for a date and been refused, was
transferred into the division of NHP where she worked. Again, we disagree. Not
every act of NHP became an adverse employment action simply because McGrath
did not agree with it. See Brooks, 229 F.3d at 928; see also Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345
(2006). Here, the transferred employee had not previously severely harassed her,3
did not harass her while in the division, and was seen infrequently by her because
NHP required that he work a different shift.4
(3) McGrath’s assertion that the district court erred because it failed to
make a cumulative analysis is otiose. McGrath has not shown evidence of separate
instances of retaliation that should have been accumulated. Nothing plus nothing
2
(...continued)
to provide for her representation. See Brooks v. City of San Mateo, 229 F.3d 917,
929–30 (9th Cir. 2000).
3
See Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991); see also Ray v.
Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
4
McGrath complains that the district court improperly refused to consider a
report. However, the report was not properly sworn to or authenticated. In any
event, it would not have affected the grant of summary judgment.
3
is still naught.
AFFIRMED.
4