NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORA WILLIAMS, No. 18-35958
Plaintiff-Appellant, D.C. No. 3:16-cv-05945-BHS
v.
THOMAS MODLY, Acting Secretary MEMORANDUM*
of the Navy,
Defendant-Appellee,
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted December 9, 2019**
Seattle, Washington
Before: MCKEOWN and CHRISTEN, Circuit Judges, and HARPOOL,***
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 M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
Nora Williams was employed by the U.S. Navy. In July 2014, she notified
the Navy she had been diagnosed with two medical disabilities and requested a
reasonable accommodation (RA) under the Rehabilitation Act of 1973. 29 U.S.C.
§ 701 et seq. In December 2014, she was granted an RA whereby she was allowed
to telework full-time with a few specific exceptions. The form memorializing the
RA stated it would be revisited in three months. Id. In April 2016, Williams’
supervisor raised the prospect of revisiting the RA, but this review never occurred.
Over the course of her employment, Williams filed multiple EEO complaints
against her supervisors for alleged violations of her RA and other discriminatory
actions.
Throughout 2015 and 2016, Williams’ supervisors personally observed and
received reports from other employees of the following instances of her
misconduct: (1) she discussed bringing a gun to work with her coworkers; (2) she
wore a body camera at work; and (3) she discussed her RA and the RA process
with coworkers to the point of disruption. Based on these reports, her supervisors
initiated an investigation on August 11, 2016. As part of the investigation, she was
interviewed for one hour with a union representative and an HR employee present.
Williams requested the HR employee not be present because she had previously
filed an EEO complaint against that employee, but HR declined her request.
Williams has admitted to the substance of the allegations.
2 18-35958
On October 26, 2016, Williams took medical leave relating to her
disabilities. On February 10, 2017, the investigation concluded that she had
behaved inappropriately. She was issued a Letter of Caution, which was not added
to her personnel folder. Immediately after her medical leave expired, Williams
used her remaining paid leave, then entered Leave Without Pay status until her
medical retirement on March 3, 2018.
Williams sued under the Rehabilitation Act. The district court granted the
Navy’s summary judgment motion and dismissed the case. On appeal, Williams
claims the evidence before the district court could convince a reasonable juror that
her supervisors (1) interfered with her RA; (2) subjected her to adverse
employment actions in retaliation for protected activities; and (3) created a hostile
work environment. Review of a summary judgment ruling is de novo. Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017).
Williams claims a reasonable juror could find that her supervisor interfered
with her RA when he proposed revisiting its terms, likening this to the RA’s
termination. However, the claim fails because Williams’ RA explicitly
contemplated its own review. Moreover, the RA was never actually revisited or
modified.
Williams next claims a reasonable juror could find she was subjected to the
adverse employment actions of being investigated and issued a Letter of Caution in
3 18-35958
retaliation for her protected activities of seeking an RA and filing EEO complaints.
For purposes of a retaliation claim, an employment action is adverse if it would
dissuade a reasonable worker from making a claim of discrimination. Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
While an investigation may in some instances be considered an adverse
employment action, an employer is “required . . . to investigate when it receives
credible allegations of . . . misconduct[.]” Campbell v. Hawaii Dep’t of Educ., 892
F.3d 1005, 1022 (9th Cir. 2018). We conclude the allegations of misconduct, later
corroborated by Williams, were credible and justified both the investigation and
the issuance of the Letter of Caution. For this reason, the investigation cannot be
considered an adverse employment action. The panel notes the Letter of Caution
could not have changed the conditions of Williams’ employment in any event
because it was unpublicized and not even issued until after she had taken
permanent leave from work. Such a letter, when addressing actual misconduct,
would not “dissuade a reasonable worker from making a claim of discrimination”
and as such was not an adverse employment action. Because there is no genuine
issue of material fact as to whether Williams suffered an adverse employment
action, she cannot make a prima facie retaliation claim. Pardi v. Kaiser Found.
Hosps., 389 F.3d 840, 849 (9th Cir. 2004).
Finally, Williams claims a reasonable juror could find she was subjected to a
4 18-35958
hostile work environment. A hostile work environment claim relies on a series of
separate acts that collectively are so severe and offensive that they alter the
conditions of plaintiff’s employment. Nat’l Ry. Passenger Corp. v. Morgan, 536
U.S. 101, 117 (2002) (internal citations omitted); Fuller v. City of Oakland, 47
F.3d 1522, 1527 (9th Cir. 1995). Here, Williams relies on (1) the unwanted
presence of an HR employee she had once filed an EEO claim against at her
interview; and (2) emails between her supervisors discussing negative impact on
the workplace, which she only learned of during discovery. Considering the totality
of the circumstances, these acts were not so serious or pervasive as to alter the
conditions of her employment. Even assuming a hostile work environment claim
exists in the context of the Rehabilitation Act, there is no genuine issue of material
fact as to whether a hostile work environment existed here.
AFFIRMED.
5 18-35958