Barbara Blanchard v. Ray Lahood

FILED
NOT FOR PUBLICATION DEC 07 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

BARBARA BLANCHARD, No. 10-55524

Plaintiff-Appellant, D.C. No. CV-07-07921-DDP-FFM

v.
MEMORANDUM *
RAY H. LAHOOD, Secretary of the
United States Department of
Transportation, Federal Aviation
Administration, FLOR RAMOS,
individually and in his capacity as Director
of a Division in the FAA,

Defendants-Appellants.

Appeal from the United States District Court
Central District of California
Dean D. Pregerson, District Judge, Presiding

Submitted November 18, 2011 **
Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, District

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
Judge.***

Barbara Blanchard appeals the district court’s entry of summary judgment in

favor of Defendant United States Department of Transportation, Federal Aviation

Administration (“the Department”) and FAA Director Flor Ramos, on her claims for

retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e–3(a), and failure to accommodate under the Rehabilitation Act of 1973, as

amended, 29 U.S.C. §§ 701 et seq. We have jurisdiction pursuant to 28 U.S.C. §

1291. We affirm.

We review the district court’s grant of summary judgment de novo, drawing all

reasonable inferences in favor of Blanchard, the non-movant. See Zeinali v. Raytheon

Co., 636 F.3d 544, 547 (9th Cir. 2011). Summary judgment is appropriate if the

moving party establishes “that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).

A plaintiff must prove the following in order to establish a prima facie case of

retaliation: (1) she engaged in a protected activity; (2) she was subjected to an adverse

employment action by her employer; and (3) there was a causal link between the two

events. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). If

the plaintiff meets her burden, the burden then shifts to the defendant to articulate a

***
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.

2
legitimate, non-discriminatory reason for the challenged action. See id. If the

defendant satisfies its burden, the plaintiff then must produce evidence tending to

show that the asserted reasons were a pretext for retaliation. See id.

The district court concluded Blanchard could not establish that there was a

causal connection between her 2003 Equal Employment Opportunity (EEO) complaint

and any retaliatory actions.

We agree with the district court’s determination that the lapse of time between

the EEO complaint and the adverse actions at issue was too tenuous. Ramos did not

meet Blanchard until November of 2004, almost one year after Blanchard’s EEO

complaint was resolved. He did not become her supervisor until October of 2005.

Blanchard correctly argues that it is causation, and not temporal proximity

alone, which is an element of a plaintiff’s retaliation claim. See Porter v. California

Dept. of Corrections, 419 F.3d 885, 894-95 (9th Cir. 2005). However, Blanchard

offers nothing more than speculation in arguing that there is a causal connection

between her protected activity and any adverse employment actions. Therefore, we

conclude that Blanchard is unable to assert a prima facie case of retaliation.

“To state a prima facie case under the Rehabilitation Act, a plaintiff must

demonstrate that (1) she is a person with a disability, (2) who is otherwise qualified

for employment, and (3) suffered discrimination because of her disability.” Walton

v. U.S. Marshals Service, 492 F.3d 998, 1005 (9th Cir. 2007). “[A]n individual is

3
disabled if that individual (1) has a physical or mental impairment that substantially

limits one or more of the individual’s major life activities; (2) has a record of such an

impairment; or (3) is regarded as having such an impairment.” Coons v. Sec’y of U.S.

Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (citations omitted).

An employer discriminates against an employee by “not making reasonable

accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee, unless [the employer]

can demonstrate that the accommodation would impose an undue hardship on the

operation of the business of [the employer].” Zivkovic v. S. Cal. Edison Co., 302 F.3d

1080, 1089 (9th Cir. 2002) (quoting 42 U.S.C. § 12112(b)(5)(A)).

Blanchard appears to claim that the denial of her requests for advanced sick

leave constituted a failure to provide a reasonable accommodation. Because

Blanchard declined to provide additional information about her medical condition

upon request, we disagree. The record establishes that each of Blanchard’s requests

for accrued annual and sick leave, as well as leave without pay, were approved. We

conclude there is no genuine dispute regarding whether Blanchard’s employer

discriminated against her on the basis of a disability.

Although Blanchard now argues that the Department failed to initiate and

engage in the required interactive process, she acknowledges that she did not raise the

issue before the district court. We generally do not consider issues raised for the first

4
time on appeal. See Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002).

AFFIRMED.