Nilsson v. City of Mesa

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHRISTINE NILSSON, 
Plaintiff-Appellant, No. 05-15627
v.
 D.C. No.
CV-02-00287-JWS
CITY OF MESA, municipal
corporation, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding

Argued and Submitted
February 13, 2007—San Francisco, California

Filed September 13, 2007

Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Alfred V. Covello,* Senior Judge.

Opinion by Judge Rawlinson

*The Honorable Alfred V. Covello, Senior District Judge for the Dis-
trict of Connecticut, sitting by designation.

12361
12364 NILSSON v. CITY OF MESA

COUNSEL

David F. Gaona, Phoenix, Arizona, for the plaintiff-appellant.

Mark T. Steadman, Mesa, Arizona, for the defendant-
appellee.

OPINION

RAWLINSON, Circuit Judge:

Christine Nilsson (Nilsson) appeals the district court’s
order granting summary judgment in favor of defendant-
appellee City of Mesa (Mesa) in her action alleging violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., Title I of the Americans with Disabilities Act
 NILSSON v. CITY OF MESA 12365
of 1990 (ADA), 42 U.S.C. § 12111 et seq., the United States
Constitution’s due process and equal protection clauses, and
various Arizona state laws, including the Arizona Employ-
ment Discrimination Act (AEDA), Ariz. Rev. Stat. § 41-1461
et seq.1 Because summary judgment in favor of Mesa was
warranted, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Nilsson applied for a police officer position with the City
of Mesa. In conjunction with her employment application,
Nilsson agreed to “waive all [her] legal rights and causes of
action to the extent that the Mesa, Arizona, Police Department
investigation (for purposes of evaluating [her] suitability or
application for employment) . . . violate[d] or infringe[d] upon
. . . [her] legal rights and causes of action . . .” In addition,
Nilsson:

[A]gree[d] to hold harmless and release from liabil-
ity under any and all possible causes of legal action
the City of Mesa, Arizona Police Department, their
officers, agents, and employees for any statements,
acts, or omissions in the course of the investigation
into [her] background, employment history, health,
family, personal habits and reputation.

Officer Dwayne Yunker (Yunker) was assigned to investi-
gate Nilsson’s background. After an initial review, Yunker
“gave . . . Nilsson the thumbs up,” and her employment appli-
cation was sent to the Mesa Police Department’s (Mesa PD)
Hiring Board. Yunker continued discussions with Nilsson,
1
Because Nilsson does not challenge the district court’s dismissal of her
public policy, intentional infliction of emotional distress, invasion of
privacy/false light, intentional interference with prospective contracting,
and negligent misrepresentation claims in her opening brief, she has
waived these claims on appeal. See Arpin v. Santa Clara Valley Transp.
Agc’y, 261 F.3d 912, 919 (9th Cir. 2001).
12366 NILSSON v. CITY OF MESA
however, because he was unable to answer the Hiring Ser-
geant’s questions regarding the conditions under which Nils-
son left the Tempe Police Department (Tempe PD), as well as
the various legal proceedings in which Nilsson had been
involved while employed by the Tempe PD. Nilsson disclosed
that she had been involved in an EEOC dispute with the
Tempe PD, and that she left the Tempe PD as part of a settle-
ment agreement. In a subsequent discussion, Nilsson
explained that she had been involved in civil proceedings in
1983, 1988, 1991, and 1992. Nilsson also revealed that in or
around 1990 or 1991 she filed a worker’s compensation
claim, and that in 1993 she was involved in a labor board pro-
ceeding.

The Hiring Board denied Nilsson’s application, but did not
inform her of its decision. Nilsson learned that her application
had been denied from Detective John Newberry (Newberry),
a friend of hers at the Mesa PD. Newberry also informed Nils-
son that “there could be a possibility [the hiring officials] . . .
could change their mind.” The Mesa PD subsequently
extended a conditional offer of employment to Nilsson, sub-
ject to her successfully completing a physical aptitude test, a
medical examination, and a psychological evaluation. Nilsson
passed the physical aptitude test, as well as the medical exam-
ination, but failed the psychological evaluation. Dr. Robin
Ford, a clinical psychologist, recommended that Nilsson not
be hired, citing among other reasons “[Nilsson’s] stubborn,
[sic] edginess and impulsivity.” Nilsson was ultimately not
hired by the Mesa PD.

Nilsson filed a charge of discrimination with the EEOC
asserting violations of her rights under the ADA and Title
VII. She subsequently sued Mesa asserting various state and
federal claims. After the district court granted summary judg-
ment in favor of Mesa, Nilsson filed this timely appeal.

II. STANDARD OF REVIEW

We review the district court’s decision to grant summary
judgment de novo. See Porter v. California Dep’t of Corr.,
 NILSSON v. CITY OF MESA 12367
419 F.3d 885, 891 (9th Cir. 2005). Summary judgment is
appropriate if viewing the evidence in the light most favorable
to Nilsson, and making all reasonable inferences in her favor,
“there is no genuine issue as to any material fact and . . .
[Mesa] is entitled to a judgment as a matter of law.” Id.

III. DISCUSSION

A. The Waiver Signed By Nilsson Bars Her ADA
Claims and Her § 1983 Claims, but not Her Title
VII Claims.

[1] “The interpretation and validity of a [waiver] of [federal
claims] is governed by federal law.” Stroman v. West Coast
Grocery Co., 884 F.2d 458, 461 (9th Cir. 1989) (citations
omitted). “[A]n agreement need not specifically recite the par-
ticular claims waived in order to be effective.” Id. However,
we “must closely scrutinize a waiver of rights under Title VII
because of their remedial nature.” Id. (citation omitted).

The waiver signed by Nilsson encompassed:

. . . any and all possible causes of legal action
[against] the City of Mesa, Arizona Police Depart-
ment, their officers, agents, and employees for any
acts, or omissions in the course of the investigation
into [her] background, employment history, health,
family, personal habits and reputation . . . and[, all]
. . . causes of action to the extent that the Mesa, Ari-
zona Police Department investigation (for purposes
of evaluating [her] suitability for employment) may
violate or infringe upon the[ ] aforementioned legal
rights and causes of action.

(emphasis added).

[2] Nilsson urges us to hold that the waiver is not enforce-
able against her because she did not understand it. In Stroman,
we held that:
12368 NILSSON v. CITY OF MESA
[t]he determination of whether a waiver of [a federal
right] was voluntary, deliberate, and informed is
predicated upon an evaluation of several indicia aris-
ing from the circumstances and conditions under
which the release was executed[, including] . . . [the]
clarity and lack of ambiguity of the agreement, . . .
the plaintiff’s education and business experience, . . .
the presence of a noncoercive atmosphere . . . , and
whether the employee had the benefit of legal coun-
sel . . .

Id. at 462 (citations and internal quotation marks omitted).

[3] Based on her college-level education and prior work
experience with the Tempe PD, Nilsson possessed sufficient
education and experience to understand the waiver. Cf. id. at
462-63 (describing a plaintiff with similar education and
experience). Although Nilsson represents that she did not
have an attorney read the waiver before signing it, “there is
no evidence indicating that [she] was discouraged or pre-
cluded from doing so.” Id. at 463. To the contrary, the waiver
expressly states in bold capital letters: “READ CAREFULLY
BEFORE SIGNING—IF NOT UNDERSTOOD, SEEK
COMPETENT LEGAL ADVICE.” Accordingly, the evi-
dence before the district court did not present a genuine issue
of material fact as to whether Nilsson understood the waiver.2

[4] We agree with Mesa that the waiver precludes Nilsson
from asserting any of her claims that address its investigation
and inquiry. Cf. id. at 461 (construing waiver “of any and all
claims arising out of his employment” broadly) (emphasis
added). Nilsson’s ADA and § 1983 claims resulted from
2
Nilsson relies on her affidavit to establish that she did not understand
the waiver. However, “[a] conclusory, self-serving affidavit, lacking
detailed facts and any supporting evidence, is insufficient to create a genu-
ine issue of material fact.” Fed. Trade Comm’n v. Publ’g Clearing House,
Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (citations omitted).
 NILSSON v. CITY OF MESA 12369
actions taken in the course of Mesa’s investigation and are
therefore waived. In her ADA claim, Nilsson asserted that
Mesa violated the ADA by “investigat[ing] and inquir[ing]
into [her] worker’s compensation claims before submitting a
conditional offer of employment to [her].” Similarly, Nilsson
contended that Mesa violated her constitutional rights in vio-
lation of § 1983 when the Hiring Sergeant directed Yunker to
investigate her EEOC and worker’s compensation claims.
Because these actions were indisputably part and parcel of the
investigation, the waiver precludes Nilsson from proceeding
with her causes of action under the ADA and § 1983.

[5] We take a different view of Nilsson’s Title VII claim.
Mesa characterizes the basis of the Title VII claim as assert-
ing that “Mesa asked ‘improper’ questions about [Nilsson’s]
EEOC complaint and . . . [denied] her application.” Although
it is true that Nilsson waived “any and all possible causes of
legal action [against Mesa] . . . for any . . . acts, or omissions
in the course of the investigation into [her] background,
employment history, health, family, personal habits and repu-
tation,” (emphasis added), Nilsson’s Title VII claim rests on
her assertion that she was not hired due to her filing an EEOC
complaint against the City of Tempe, not, as Mesa contends,
because Mesa improperly discovered her EEOC complaint
during the course of its investigation. Accordingly, Nilsson’s
Title VII claim is not barred by the waiver.

B. Nilsson’s AEDA Sex Discrimination and Disability
Claims Are Statutorily Barred as Unexhausted,
However, Her AEDA Retaliation Claim Survives.

[6] Claims not filed with either the EEOC or the Arizona
Civil Rights Division are statutorily barred as unexhausted.
See Bodett v. CoxCom, Inc., 366 F.3d 736, 740 n.2 (9th Cir.
2004), see also Webb v. Bd. of Educ., 471 U.S. 234, 247
(1985) (Brennan, J., concurring in part and dissenting in part)
(referring to an “administrative exhaustion requirement”). The
parties agree that because the EEOC and the Arizona Civil
12370 NILSSON v. CITY OF MESA
Rights Division have a Sharing Agreement, Nilsson’s EEOC
charge against the Mesa PD qualified as a charge filed under
the AEDA. However, the parties dispute the extent to which
the claims asserted by Nilsson in her EEOC complaint consti-
tuted notice of the claims she seeks relief for under the
AEDA.

[7] Under the AEDA:

It is an unlawful employment practice for an
employer . . . [t]o fail or refuse to hire or to dis-
charge any individual or otherwise to discriminate
against any individual with respect to the individu-
al’s compensation, terms, conditions or privileges of
employment because of the individual’s race, color,
religion, sex, age, disability or national origin.

Ariz. Rev. Stat. § 41-1463(B)(1). The AEDA also makes it
unlawful for an employer to “discriminate against any . . .
applicant[ ] for employment . . . because the . . . applicant has
opposed any practice which is an unlawful employment prac-
tice under [the Act].” Id. at § 41-1464(A). Nilsson’s EEOC
Complaint alleged discrimination based on Mesa’s retaliation
for Nilsson’s filing of an EEOC complaint against the Tempe
PD, and disability discrimination based on the Mesa PD’s
improper questioning about her prior worker’s compensation
claims. Because the EEOC Complaint expressly stated the
disability retaliation charge, her retaliation claim under the
AEDA survives. See Bodett, 366 F.3d at 740 n.2. However,
Nilsson’s claim of sex discrimination under the AEDA does
not survive because she failed to comply with the AEDA’s
exhaustion requirement as to that claim, having failed to men-
tion it in her EEOC Complaint. See id. Similarly, Nilsson’s
AEDA disability claim is statutorily barred, as she did not
assert in her EEOC Complaint that the Mesa PD “refuse[d] to
hire . . . or otherwise[ ] discriminate[d] against [her] . . .
because of . . . disability.” Ariz. Rev. Stat. § 41-1463(B)(1)
(emphasis added). Although Nilsson included an allegation
 NILSSON v. CITY OF MESA 12371
that she was retaliated against for filing a worker’s compensa-
tion claim, she never alleged that she was discriminated
against on the basis of a disability.

C. Nilsson’s Title VII Retaliation Claim and AEDA
Retaliation Claim Do Not Survive Summary
Judgment Because Nilsson Failed to Raise a
Genuine Issue of Material Fact Regarding Pretext.

[8] Title VII prohibits, among other things, retaliation
against an employee for making a charge or otherwise partici-
pating in a Title VII proceeding. See 42 U.S.C. § 2000e-3(a).3
“In order to establish a prima facie case of retaliation [Nils-
son] must demonstrate that (1) she had engaged in a protected
activity;” (2) the Mesa PD subjected her “to an adverse
employment action; and (3) a causal link existed between the
protected activity and the adverse employment action.” Por-
ter, 419 F.3d at 894 (citation omitted). “If [Nilsson] provides
sufficient evidence to show a prima facie case of retaliation,
the burden then shifts to the [Mesa PD] to articulate a legiti-
mate, non-retaliatory reason for its actions.” Id. (citation omit-
ted). “If the [Mesa PD] sets forth such a reason, [Nilsson]
bears the ultimate burden of submitting evidence indicating
that the [Mesa PD’s] proffered reason is merely a pretext for
a retaliatory motive.” Id. (citation omitted).4
3
According to the EEOC’s Compliance Manual, “[t]here is no require-
ment that the entity charged with retaliation be the same as the entity
whose allegedly discriminatory practices were opposed by the charging
party.” EEOCCM § 8-II(B)(3)(d). The EEOC’s determination is entitled to
deference under Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). See EEOC v. Dinuba Medical Clinic Inc., 222 F.3d 580,
588-89 (9th Cir. 2000) (according deference to the EEOC’s Enforcement
Guidance).
4
“[F]ederal Title VII case law is persuasive in the interpretation of the
Arizona Civil Rights Act.” Bodett, 366 F.3d at 742 (citation and alter-
ations omitted).
12372 NILSSON v. CITY OF MESA
1. Nilsson Established a Prima Facie Case of
Retaliation.

[9] Neither party disputes that the first two prongs of the
prima facie test were met.5 However, Mesa contends that
there is no causal link between its decision not to hire Nilsson
and Nilsson’s filing of an EEOC complaint against the Tempe
PD because: (1) the Mesa PD made Nilsson a conditional
offer of employment after learning that she had filed an
EEOC complaint against the Tempe PD, and (2) the Mesa
PD’s decision was based on Dr. Ford’s recommendation. Nei-
ther of these facts are relevant considerations in determining
whether Nilsson established a prima facie case of retaliation
as they are an attempt to “articulate . . . legitimate, non-
retaliatory reason[s] for [the Mesa PD’s] actions.” See Porter,
419 F.3d at 894. Nilsson established that Mesa was aware of
her previous EEOC complaint against the Tempe PD. Mesa
concedes as much. In addition, Yunker testified during his
deposition that he “understood that [the situation that he was
following up on] involved an EEOC complaint . . .” This evi-
dence is sufficient to establish a genuine issue of material fact
as to whether a causal link exists between Nilsson’s filing of
an EEOC complaint against the Tempe PD and Mesa’s deci-
sion not to hire her. See Hernandez v. Spacelabs Med., Inc.,
343 F.3d 1107, 1113-14 (9th Cir. 2003).

2. Nilsson Failed to Establish That the Mesa PD’s
Legitimate Proffered Reason for not Hiring Her Is
Merely a Pretext for a Retaliatory Motive.

[10] Nilsson does not dispute that the Mesa PD has met its
burden of articulating a legitimate, non-discriminatory reason
for its decision not to hire her—passing a psychological eval-
5
Nilsson’s filing of a complaint with the EEOC was protected activity.
See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1125 n.19 (9th Cir.
2004). Nilsson suffered an adverse employment decision when Mesa
declined to hire her. See id.
 NILSSON v. CITY OF MESA 12373
uation was a condition of her employment. However, Nilsson
contends that Mesa’s conditional offer of employment, and
subsequent denial on the grounds that Nilsson failed her psy-
chological examination, constituted pretext. “To establish that
[Mesa’s] nondiscriminatory explanation is a pretext for dis-
crimination, [Nilsson] may rely on circumstantial evidence,
which . . . must be ‘specific’ and ‘substantial’ to create a gen-
uine issue of material fact.” Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1029 (9th Cir. 2006) (citation and foot-
note reference omitted).

During her deposition, Nilsson explained that her friend
Newberry informed her that she was a “legal risk” and based
on that, “it appeared” that the legal risk was a reference to her
EEOC complaint against the Tempe PD. (Emphasis added).
However, during his deposition, Newberry clarified that his
comments were “complete assumptions and guessing . . .”
Newberry’s rank speculation about the Mesa PD’s reasons for
its hiring decision does not create a genuine issue of material
fact. See Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370,
1377 (9th Cir. 1978).

[11] Nilsson also attempts to establish pretext by reference
to Yunker’s deposition testimony stating that the reason the
Hiring Board initially denied Nilsson’s application was that
“Nilsson had left Tempe PD and [because of] previous . . . lit-
igation or . . . lawsuits.” However, independent of Nilsson’s
prior litigation, the Mesa PD rejected Nilsson’s employment
application because she failed a required psychological exam-
ination. The psychological evaluation that Nilsson failed was
performed by Dr. Ford, an independent clinical psychologist
who was not employed by Mesa. Nilsson did not present any
evidence refuting Dr. Ford’s professional opinion that Nilsson
should not be hired. She also failed to present any evidence
that Dr. Ford’s opinion was based on anything other than a
legitimate psychological evaluation. See Cornwell, 439 F.3d
at 1029 n.6 (“A plaintiff may not defeat a defendant’s motion
for summary judgment merely by denying the credibility of
12374 NILSSON v. CITY OF MESA
the defendant’s proffered reason for the challenged employ-
ment action.”) (citations omitted). As Nilsson failed to meet
her burden of raising a genuine issue of material fact with
respect to pretext, summary judgment in favor of Mesa on
both Nilsson’s Title VII and AEDA retaliation claims was
warranted under governing law. See Porter, 419 F.3d at 894.

IV. CONCLUSION

Nilsson voluntarily, deliberately, and knowingly waived
her right to assert her ADA and § 1983 claims against the
Mesa PD because they were predicated on actions taken dur-
ing the background investigation. As Nilsson failed to file a
charge with either the EEOC or the Arizona Civil Rights
Division with respect to her sex and disability discrimination
claims under the AEDA, those claims were not exhausted.
Although Nilsson’s Title VII and AEDA retaliation claims
were not barred, she failed to raise a genuine issue of material
fact with respect to pretext. Accordingly, summary judgment
in favor of Mesa was warranted as to all of Nilsson’s causes
of action.

AFFIRMED.