FILED
NOT FOR PUBLICATION
DEC 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANDY MILLER, No. 13-17091
Plaintiff - Appellant, D.C. No. 4:11-cv-00333-TUC-JGZ
v.
MEMORANDUM*
GRAHAM COUNTY, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted December 9, 2015
San Francisco, California
Before: CLIFTON and OWENS, Circuit Judges, and SMITH, Chief District
Judge.**
Plaintiff Tandy Miller appeals the district court’s grant of summary
judgment to defendants Graham County, et al. on Miller’s claims of gender and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
national origin discrimination, including allegations of a hostile work environment,
and retaliation, all of which she brought pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. We affirm.
The facts of this case are known to the parties. We do not repeat them. We
have jurisdiction under 28 U.S.C. § 1291 and review the district court’s grant of
summary judgment de novo. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098
(9th Cir. 2015).1
Miller’s gender and national origin discrimination claims each suffer from
the same defect: Miller simply cannot point to any evidence, beyond her own
speculation, that similarly situated individuals outside of her protected class were
treated more favorably than she was. See Aragon v. Republic Silver State
Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002) (to establish a prima facie case of
discrimination, plaintiffs must, inter alia, present evidence that similarly situated
employees outside of their protected class were treated more favorably than the
plaintiffs). Miller points to a number of instances where she claims male and
Hispanic employees were treated more favorably than she was. Miller, however,
failed to exhaust her administrative remedies as to her failure to promote claims,
1
Accordingly, we have conducted a de novo review of Miller’s evidence
and allegations, even those allegations the district court struck on evidentiary and
jurisdictional grounds.
2
see B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (setting forth
factors courts consider to determine if plaintiffs have exhausted their
administrative remedies in Title VII cases); she did not support her unequal
scheduling and performance review allegations with admissible evidence; and the
remainder of her allegations do not concern individuals with similar job duties to
hers, Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)
(“Individuals are similarly situated when they have similar jobs and display similar
conduct.”) (internal citation and quotation marks omitted). Accordingly, the
district court did not err in holding that Miller failed to establish a prima facie case
of national origin or gender discrimination.
Miller tries to salvage her gender discrimination claim by arguing that two
comments—one from Michael Aranda, and one from Esgardo Luzania—constitute
direct evidence of discrimination. The district court did not err in rejecting
Miller’s argument. Assuming, arguendo, that the comments constitute direct
evidence of discrimination, Miller fails to allege any nexus between the comments
and any discriminatory employment action. See Vasquez v. Cty. of Los Angeles,
349 F.3d 634, 640 (9th Cir. 2004) (nexus required between direct evidence of
discrimination and adverse employment actions).
3
The district court also properly granted summary judgment on Miller’s
hostile work environment claim. While Miller has presented evidence that she
experienced a subjectively hostile environment, she does not present evidence to
suggest that a reasonable female Caucasian corrections officer would find the
conduct offensive. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1115 (9th
Cir. 2004) (holding that the objective hostility of the environment must be
considered “from the perspective of a reasonable person belonging to the racial or
ethnic group of the plaintiff.”).
Finally, the district court did not err in granting summary judgment on
Miller’s retaliation claim. First, many of the allegations to which Miller points as
adverse employment actions occurred prior to Miller engaging in any protected
activity, and, thus, do not support her retaliation claims. See Dawson v. Entek Int’l,
630 F.3d 928, 936 (9th Cir. 2011) (noting that the retaliation claims to survive
summary judgment, plaintiffs “must show the existence of facts from which a
reasonable trier of fact could conclude that sometime during [their employment],
[they] engaged in protected activity and that [their employer], retaliated against
[them] in response to that activity”). And for those actions that occurred after she
engaged in a protected activity, Miller has failed to present any evidence that the
County’s legitimate reason for taking the action was pretext for retaliation. See id.
4
AFFIRMED.
5