FILED
DEC 13 2011
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON ROTH, No. 10-17464
Plaintiff - Appellant, D.C. No. 2:09-cv-00355-FJM
v.
MEMORANDUM *
COUNTY OF MARICOPA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted December 9, 2011 **
San Francisco, California
Before: ALARCÓN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Aaron Roth appeals from the district court’s order granting summary
judgment in favor of the County of Maricopa (“County”) for his failure to establish
a prima facie case of retaliation against the County in violation of Title VII of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).1 Roth also appeals from the
district court’s order denying his motion to alter or amend the judgment pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. We have jurisdiction pursuant
to 28 U.S.C. § 1291. We affirm.
I
Roth contends that the district court erred in concluding that he failed to
present sufficient evidence in his opposition to the County’s motion for summary
judgment that there is a genuine issue of material fact in dispute regarding whether
he was subject to an adverse employment decision in retaliation for his complaint
that his supervisor subjected him to discrimination because of his gender in
violation of Title VII. “We review de novo the district court’s grant of summary
judgment.” FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009).
In order to establish a prima facie case of retaliation under Title VII, a
plaintiff must demonstrate: “(1) involvement in protected activity opposing an
unlawful employment practice, (2) an adverse employment action, and (3) a causal
link between the protected activity and the adverse action.” Freitag v. Ayers, 468
F.3d 528, 541 (9th Cir. 2006). “[A]n action is cognizable as an adverse
1
The district court also granted summary judgment in favor of the County
as to Roth’s sexual discrimination claim because, as Roth conceded, he failed to
present any evidence to support the claim.
2
employment action if it is reasonably likely to deter employees from engaging in
protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).
Roth contends that the district court “erroneously gave credibility to
Church’s statements merely because they were not contradicted by direct
evidence.” This argument is contrary to the law of this circuit. “A plaintiff may
not defeat a defendant’s motion for summary judgment merely by denying the
credibility of the defendant’s proferred reasons[s] for the challenged employment
action.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 n.6 (9th Cir.
2006).
Where direct evidence is unavailable, . . . the plaintiff
may come forward with circumstantial evidence . . . to
show that the employer’s proferred motives were not the
actual motives because they are inconsistent or otherwise
not believable. Such evidence . . . must be ‘specific’ and
‘substantial’ in order to create a triable issue with respect
to whether the employer intended to discriminate on the
basis of [a prohibited ground].
Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004) (citation omitted).
Roth failed to present direct or circumstantial evidence that demonstrates
that Church’s motive for not notifying Roth was based on his complaint of gender
discrimination.
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II
Roth also asserts that the district court erred in concluding that he had failed
to demonstrate a prima facie case of retaliation because of the temporal proximity
between his compliant to Church of Dr. Cox’s alleged gender discrimination and
the failure to give him notice of the reclassification a few weeks later. We
disagree. The doctrine of temporal proximity is inapplicable because Roth failed
to present direct or circumstantial evidence that he was subjected to an adverse
employment action that was caused by his complaint of gender discrimination.
III
Roth also appeals from the district court’s denial of his motion pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. He contends that the district
court misconstrued the evidence in granting the County’s motion for summary
judgment regarding whether Church’s failure to notify Roth after he accepted a
different job that his position as administrative specialist would be reclassified
subject to the action of the Board of Supervisors. The record demonstrates that
Roth failed to present any direct or circumstantial evidence that Church’s
testimony was not credible.
Conclusion
The district court’s order granting summary judgment on Roth’s Title VII
4
claim and the denial of his Rule 59(e) motion are AFFIRMED.
5