FILED
NOT FOR PUBLICATION
FEB 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEANNA MARTHA ROBINSON, No. 13-16853
Plaintiff-Appellant, D.C. No. 3:12-cv-00730-JCS
v.
MEMORANDUM*
ALAMEDA COUNTY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted November 17, 2016
San Francisco, California
Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.
In 1998, Plaintiff Roseanna Robinson became a part-time peace officer in
Defendant Alameda County’s Probation Department (“the County”). Over the course
of a decade, Robinson filed numerous internal and governmental complaints alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
discrimination and harassment by her supervisors. In 2010, Robinson applied for, and
was offered, a promotion to a full-time peace officer position. The County
conditioned its offer on Robinson passing a psychological evaluation, as was required
of all applicants offered the position at the time. Robinson, however, did not pass the
evaluation. As a result, the County not only denied Robinson the promotion to full-
time peace officer, but also stopped scheduling her for work in her existing part-time
peace officer position. The County informed Robinson that, by failing the
psychological evaluation, she fell below the minimum standards required of peace
officers under Cal. Gov’t Code § 1031.
Robinson filed suit against the County. She alleged, inter alia, retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).
Opposing the County’s motion for summary judgment, Robinson argued that the
failed psychological evaluation was pretext for the County’s real motive: retaliation
for the internal and governmental complaints she had filed over the years. The district
court, however, found that Robinson did not raise a triable issue of fact regarding
pretext. Accordingly, the district court granted summary judgment to the County.
Robinson appeals, and we now affirm.
The only issue on appeal is whether, under Title VII, Robinson raised a triable
issue of fact that the failed psychological evaluation was pretext for illegal retaliation.
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“We review a district court’s grant of summary judgment de novo.” Swoger v. Rare
Coin Wholesalers, 803 F.3d 1045, 1047 (9th Cir. 2015). In so doing, we “view the
evidence in the light most favorable to the non-movant and draw all reasonable
inferences in the non-movant’s favor.” Id.
As an initial matter, we note that Robinson’s appeal primarily relies on
arguments and evidence not presented to the district court. In opposition to the
County’s motion for summary judgment, Robinson alleged the results of her
psychological evaluation were fabricated or improperly influenced by her supervisor.
She also argued that, even if the evaluation results were accurate, the County
disregarded restrictions placed on the use of the evaluation by the psychologist. On
appeal, Robinson renews her argument as to the evaluation’s restrictions, but she does
not challenge the evaluation’s results as inaccurate. She also presents new arguments
and evidence to support her pretext claim. Specifically, she argues that the County
disregarded procedural protections afforded to County employees when it relied on
the psychological evaluation to remove her from the work schedule. According to
Robinson, these alleged procedural irregularities are evidence of pretext.
“We apply a ‘general rule’ against entertaining arguments on appeal that were
not presented or developed before the district court.” Peterson v. Highland Music,
Inc., 140 F.3d 1313, 1321 (9th Cir. 1998) (quoting Bolker v. Comm’r of Internal
3
Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985)). There is no “bright-line rule,” but
“[a] workable standard . . . is that the argument must be raised sufficiently for the trial
court to rule on it.” O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.), 887
F.2d 955, 957 (9th Cir. 1989). And “evidence [presented] for the first time on appeal
cannot create a triable issue of fact” where the party “failed to articulate this evidence
to the district court in opposition to the summary judgment motion.” United States
v. Kitsap Physicians Serv., 314 F.3d 995, 999 (9th Cir. 2002). In the present case, we
find no circumstances warranting consideration of Robinson’s new arguments and
evidence. See Peterson, 140 F.3d at 1321 (listing exceptions to the rule that a court
will not consider new arguments on appeal).
But even if we were to consider all of Robinson’s arguments and evidence on
appeal, we would still find she has not produced sufficient evidence to generate a
triable question of fact as to pretext. Robinson correctly states that procedural
irregularities can support an inference that an employer’s stated reason for an adverse
action is actually pretext for its true retaliatory motive. See, e.g., Porter v. Cal. Dep’t
of Corrs., 419 F.3d 885, 896 (9th Cir. 2005). It does not follow, however, that every
procedural irregularity will raise such an inference. Here, the County has consistently
claimed that it stopped scheduling Robinson for work because she failed her
psychological evaluation and, therefore, ceased to meet the requirements for peace
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officers under Cal. Gov’t Code § 1031. Robinson acknowledges that she is required
to meet the requirements of section 1031 throughout her career as a peace officer. See
Sager v. Cty. of Yuba, 68 Cal. Rptr. 3d 1, 7 (Cal. Ct. App. 2007). She also
acknowledges that the County must enforce those requirements. See id. at 7–8.
What Robinson disputes is the manner in which the County enforced
section 1031. Specifically, Robinson argues that the County improperly enforced
section 1031 at the expense of her procedural rights under the County’s charter and
civil service rules. Even if Robinson’s procedural rights were violated, these
violations would not suggest that the County stopped scheduling her for work
“because” she engaged in protected activities under Title VII. See 42 U.S.C. § 2000e-
3(a). Similarly, the County’s alleged disregard of the psychological evaluation’s
restrictions does not suggest that the County stopped scheduling Robinson for work
or refused to promote her because she engaged in protected activities. Although the
evaluation was intended only for Robinson’s promotion to a full-time peace officer
position, Robinson’s part-time position is substantially identical to the full-time
position and likewise subject to the requirements under section 1031. Indeed,
Robinson submitted to and passed a psychological evaluation when the County first
hired her as a part-time peace officer. The County’s alleged refusal to consider
Robinson for a promotion one year after the evaluation was administered, moreover,
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does not raise an inference of retaliatory motive. The County has long offered to
consider an updated, second opinion from a qualified psychologist, but Robinson has
not provided an opinion sufficient to satisfy the requirements under section 1031.
Under these facts, we find that Robinson has not presented sufficient evidence to raise
a triable issue of fact on the issue of pretext.
For the foregoing reasons, the district court’s grant of summary judgment is
AFFIRMED.
Appellant’s motion for judicial notice, filed January 21, 2016, is GRANTED
IN PART and DENIED IN PART.1
1
Specifically, we grant the motion as to the opinion from the state court
disciplinary proceeding, but deny the motion as to the remaining documents.
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