FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ADRIENNE P. CLAYTON, No. 10-56009
Plaintiff - Appellant, D.C. No. 2:09-cv-06479-R-VBK
v.
MEMORANDUM *
PATRICK R. DONAHOE, Postmaster
General of the United States Postal
Service,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted December 9, 2011 **
Pasadena, California
Before: D.W. NELSON, GOULD, and IKUTA, Circuit Judges.
Adrienne P. Clayton’s discrimination claim fails because Clayton has not
introduced any direct or “specific and substantial” circumstantial evidence that her
*
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).
employer’s asserted legitimate reasons for its employment decision were pretext
and that race was the real motivation behind the employment decision. See
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).
Clayton’s allegation that decisionmaker Oscar Villanueva told unspecified
“Hispanic Officers” that he intended to promote Hispanic employees, does not help
her, because it is inadmissible hearsay. See Orr v. Bank of Am., NT & SA, 285 F.3d
764, 778–79 (9th Cir. 2002).
Clayton failed to create a genuine issue of material fact that there was a
causal connection between her EEO activity and the employer’s failure to select
her. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064–65 (9th Cir.
2002). An inference of causation based on close temporal connection between
protected activity and an adverse employment action does not arise here because
Clayton’s previous EEO activity occurred sometime in 2005, at least ten months
before she applied for the supervisor position in November 2006. Cf. Manatt v.
Bank of Am. NA, 339 F.3d 792, 802 (9th Cir. 2003).
Clayton’s claims that her employer retaliated against her by failing to timely
process her Continuation of Pay (where she did not suffer any temporary or
permanent financial loss) and by restoring her belongings from storage are also
untenable, because these occurrences do not constitute “adverse actions” that
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would dissuade a reasonable employee from pursuing an EEO complaint, as
needed to establish a prima facie case of retaliation. See Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 67–68 (2006). Moreover, Clayton has not offered
any evidence, direct or circumstantial, from which a jury might infer that the
employer’s legitimate reasons for these actions were pretextual and the employer’s
true motivation was retaliation for Clayton’s EEO activity. See Dawson v. Entek
Int’l, 630 F.3d 928, 936 (9th Cir. 2011). Therefore, her retaliation claims also fail.
AFFIRMED.
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