NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TENE CARR, No. 22-56135
Plaintiff-Appellant, D.C. No.
2:19-cv-09112-CBM-JEM
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted February 12, 2024
Pasadena, California
Before: TASHIMA, CALLAHAN, and JOHNSTONE, Circuit Judges.
Plaintiff-Appellant Tene Carr appeals the district court’s orders granting the
government’s motions to dismiss and for summary judgment, along with related
evidentiary rulings, in this action asserting unlawful employment discrimination
and retaliation by the Federal Bureau of Investigation (“FBI”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo the determination that a claim is barred for failure timely
to exhaust administrative remedies. Vinieratos v. U.S., Dep’t of Air Force Through
Aldridge, 939 F.2d 762, 768 (9th Cir. 1991). We likewise review de novo a district
court’s grant of summary judgment and may affirm on any ground supported by
the record. Maner v. Dignity Health, 9 F.4th 1114, 1119 (9th Cir. 2021). A district
court’s evidentiary rulings on summary judgment are reviewed for abuse of
discretion. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021). We
presume the parties’ familiarity with the facts of the case and therefore repeat them
here only to the extent necessary to resolve the issues raised on appeal.
1. The district court properly granted the government’s motion to dismiss
Plaintiff’s claims arising from the workplace incidents that she alleged occurred
before May 2015. Federal employees like Plaintiff must timely exhaust their
administrative remedies before filing an employment discrimination suit against
the government. 42 U.S.C. § 2000e–16(c). As Plaintiff acknowledges, one of the
administrative time limits prescribed by Title VII’s implementing regulations is
that federal employees must contact an Equal Employment Opportunity (“EEO”)
counselor within 45 days of the alleged discriminatory conduct before filing a civil
action. 29 C.F.R. § 1614.105(a)(1). “[A]bsent waiver, estoppel, or equitable
tolling, failure to comply with this regulation is fatal to a federal employee’s
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discrimination claim.” Kraus v. Presidio Tr. Facilities Div./Residential Mgmt.
Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (cleaned up).
Because it was not until June 24, 2015, that Plaintiff contacted an EEO
counselor regarding the conduct underlying this suit, her claims based on incidents
occurring before May 10, 2015 (45 days prior) are time-barred. See Lyons v.
England, 307 F.3d 1092, 1105, 1108 (9th Cir. 2002) (where plaintiff does not
claim delayed awareness of the discriminatory nature of the conduct at issue, “we
simply count backward 45 days from the[] initial contact with the EEO
counselor”).
Plaintiff has asserted no meaningful argument for waiver, estoppel, or
equitable tolling of this mandatory deadline—either in the district court or on
appeal. Instead, Plaintiff continues to press her theory that all of the adverse
actions alleged in the First Amended Complaint were part of a continuing violation
and were thus rendered timely by her termination, which occurred within 45 days
of her EEO contact.1 See Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 746–48 (9th
Cir. 2019) (per curiam) (discussing the continuing violations doctrine).
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We reject the government’s argument that Plaintiff waived the dismissal of
her 2009–2014 claims by stipulating to strike those allegations and not including
them in the subsequent complaint. That stipulation occurred after the district court
had already dismissed those claims with prejudice so could not have forfeited
Plaintiff’s opposition to their dismissal.
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To successfully invoke the continuing violations doctrine, Plaintiff would
have to allege hostile work environment claims, whose “very nature involves
repeated conduct” since “a single act of harassment may not be actionable on its
own.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); see Bird,
935 F.3d at 748. Plaintiff argues that the alleged incidents leading up to her 2015
termination, including being denied a change of workstation, having her
performance ratings reduced, and receiving more difficult work assignments,
amount to a hostile work environment claim. However, the district court correctly
concluded that Plaintiff in fact alleged only a series of discrete acts of
discrimination. See Morgan, 536 U.S. at 113, 115 (distinguishing hostile
environment claims from claims based on “discrete discriminatory acts” which are
actionable immediately upon their occurrence). Plaintiff cannot transform a set of
discrete acts into a hostile work environment claim simply by calling the adverse
actions “harassment.”
Accordingly, we affirm the district court’s dismissal of Plaintiff’s pre-2015
claims because they were not timely exhausted under § 1614.105(a)(1). This
leaves two timely exhausted adverse actions that could form the basis of Plaintiff’s
discrimination and retaliation claims: (a) her 2015 termination, and (b) the FBI’s
failure to respond to her request for outside-employment authorization while
disciplinary action was pending. Plaintiff argues both actions constituted
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retaliation under Title VII, and that her termination constituted race and sex
discrimination under Title VII as well as disability discrimination under the
Rehabilitation Act of 1973. Like the district court, we reject these arguments.
2. The district court properly granted summary judgment for the
government on Plaintiff’s Title VII discrimination claims. In granting summary
judgment, the district court—erroneously, according to Plaintiff—excluded much
of the evidence Plaintiff submitted in opposition. We need not decide whether the
district court’s evidentiary rulings were an abuse of discretion because, even
considering all of Plaintiff’s proffered evidence, there was insufficient evidence
from which a jury could conclude that her termination for lack of candor, in
violation of FBI Offense Code 2.6, was pretext for race or sex discrimination.
We assume, without deciding, that Plaintiff established a prima facie case of
race and sex discrimination. However, the government produced evidence that
Plaintiff was terminated for a legitimate, nondiscriminatory reason: making false
statements under oath, the mandatory penalty for which is termination. And
Plaintiff has not raised a triable issue of material fact as to whether the
government’s reason was pretextual. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 804 (1973); Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115,
1123–24 (9th Cir. 2000) (discussing McDonnell Douglas burden shifting).
Plaintiff did not offer any direct evidence that the Assistant Director of the FBI’s
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Office of Professional Responsibility (“OPR”) who terminated her was motivated
to do so by discriminatory intent. Further, even construing the facts in the light
most favorable to her, Plaintiff did not offer any “specific and substantial”
circumstantial evidence that race or sex discrimination was the true reason for her
termination. Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003).
First, none of the four White, male comparators Plaintiff identified were
similarly situated to Plaintiff in all material respects. See Campbell v. Hawaii
Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) (Title VII plaintiff relying on
comparator evidence “must identify employees outside her race and sex who were
similarly situated to her ‘in all material respects’ but who were given preferential
treatment” (quoting Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th
Cir. 2009))). Comparators Rogero, DeVecchio, and Leighton are not similarly
situated to Plaintiff because they were not found to have lied under oath in
violation of FBI Offense Code 2.6, as Plaintiff was found to have done. See
Vasquez, 349 F.3d at 641 (finding employee not similarly situated because she
“was not involved in the same type of offense as Vasquez”). Even if a jury could
reasonably view these agents’ conduct as worse than Plaintiff’s, Plaintiff proffered
no evidence that whatever Code violations these agents may have been charged
with carried a mandatory penalty of termination like Section 2.6 does. Nor could a
jury find comparator Malone similarly situated to Plaintiff because, even accepting
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he testified falsely in multiple criminal cases without reprimand, the only evidence
in the record shows his lying and the need for discipline was not discovered until
some 13 years after the fact, by which point discipline was “preclude[d].” Thus,
Plaintiff’s comparator evidence fails to raise an inference of pretext.
Second, Plaintiff failed to offer specific and substantial evidence that the
OPR Assistant Director’s lack-of-candor finding was “unworthy of credence
because it [was] internally inconsistent or otherwise not believable,” see Mayes v.
WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017) (quoting Fonseca v.
Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 849 (9th Cir. 2004)), or because the
Assistant Director did not honestly believe her finding was justified, Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). Although Plaintiff
disputes the Assistant Director’s interpretation of Plaintiff’s various statements
under oath, those disputes are not relevant to whether the Assistant Director
honestly believed Plaintiff had knowingly made false statements or omitted
material information under oath. See Villiarimo, 281 F.3d at 1063 (in judging the
credence of an employer’s proffered justifications, “courts ‘only require that an
employer honestly believed its reasons for its actions, even if its reason is “foolish
or trivial or even baseless.”’” (quoting Johnson v. Nordstrom, Inc., 260 F.3d 727,
733 (7th Cir. 2001))).
Likewise, OPR’s repeated remands of the internal investigation for further
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factfinding—despite investigators’ comments that the allegations could not be
substantiated—would not support a finding of pretext. The only evidence
presented was that (1) OPR can and does return matters for further investigation
whenever it deems initial factfinding insufficient, and (2) it is not within
investigators’ purview to decide whether a given allegation is substantiated, as sole
adjudicatory authority lies with OPR. See Cafasso, U.S. ex rel. v. Gen. Dynamics
C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive summary
judgment, a plaintiff must set forth non-speculative evidence of specific
facts . . . .”).
Finally, the series of adverse actions Plaintiff describes experiencing in the
Los Angeles Field Office over 2009 to 2014—which could properly be considered
as background evidence for her two timely exhausted adverse actions, see Morgan,
536 U.S. at 113—also do not support an inference that the Assistant Director’s
termination decision was pretextual. Each of the earlier adverse actions were taken
by individuals other than the investigators and adjudicators involved in the internal
investigation, and Plaintiff does not assert that they communicated with or
otherwise influenced OPR officials.
3. The district court also properly granted summary judgment for the
government on Plaintiff’s Title VII retaliation claims. Like the district court, we
conclude that Plaintiff failed to establish a prima facie case of retaliation because
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she did not provide any evidence whatsoever that the two relevant decisionmakers
had knowledge of her earlier EEO complaint (her only asserted protected activity)
at the relevant time. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d
1185, 1196–97 (9th Cir. 2003), as amended (May 8, 2003) (for Title VII
retaliation, plaintiff must show that “(1) she engaged in protected activity, (2) she
suffered an adverse employment action, and (3) there was a causal link” between
the two, which at a minimum requires some showing that “the defendant was
aware that the plaintiff had engaged in protected activity”).
Plaintiff’s attempt at a “cat’s paw” theory of imputed animus fails to make
up for this deficiency. In arguing that “[a]ny information known to the [FBI] is
imputed to its managing agents,” Plaintiff gets the theory backwards. Under a
cat’s paw theory, an individual employee’s knowledge or animus can be imputed to
the decisionmaker/employer where the employee has influenced the decision. See
Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007); Bergene v. Salt River
Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001)
(“Even if a manager was not the ultimate decisionmaker, that manager’s
retaliatory motive may be imputed to the company if the manager was involved in
the [adverse employment] decision.” (emphases added)). To succeed on this
theory, “a plaintiff must establish that the person with a retaliatory motive
somehow influenced the decisionmaker to take the retaliatory action.” Acosta v.
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Brain, 910 F.3d 502, 514–15 (9th Cir. 2018) (quoting Zamora v. City of Houston,
798 F.3d 326, 331 (5th Cir. 2015)). Plaintiff has not identified anyone at the FBI
with a retaliatory motive who influenced or was otherwise involved in the decision
to terminate her or the inaction on her outside-employment request.
4. Finally, the district court properly granted summary judgment for the
government on Plaintiff’s Rehabilitation Act claim. Here, too, Plaintiff failed to
carry her burden to establish a prima facie case because she offered no evidence
that the Assistant Director—who undisputedly had never interacted with her before
her termination was proposed—knew of her disability before deciding to terminate
her. Without such evidence, no trier of fact could find Plaintiff’s disability to be
the sole reason for her termination. See 29 U.S.C. § 794; Mustafa v. Clark Cnty.
Sch. Dist., 157 F.3d 1169, 1174 (9th Cir. 1998) (for prima facie case of
Rehabilitation Act employment discrimination, plaintiff must establish, inter alia,
that she was “subjected to discrimination solely by reason of [her] disability”); see
also Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003) (“If [the hiring
manager] were truly unaware that [the plaintiff applicant’s] disability existed, it
would be impossible for her hiring decision to have been based, even in part, on
[the plaintiff]’s disability.”).
The judgment of the district court is AFFIRMED.
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