Guy Grimsley v. CHARLES RIVER LABORATORIES, INC., a Delaware Corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY GRIMSLEY,
Plaintiff - Appellant,
v.
CHARLES RIVER LABORATORIES,
INC., a Delaware Corporation,
Defendant - Appellee.
No. 10-16704
D.C. No. 3:09-cv-00680-ECR-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted January 19, 2012
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Guy Grimsley filed two actions against Charles River Laboratories in the
District of Nevada, numbered 3:08-cv-00482-LRH-VPC (“Grimsley I”) and
FILED
FEB 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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While this appeal was pending, the district court dismissed Grimsley I, and1
Grimsley filed another appeal, which this court numbered 12-15106. This
disposition addresses only Grimsley’s appeal from Grimsley II, not his appeal from
Grimsley I. We do, however, grant Charles River’s unopposed January 12, 2011
motion to take judicial notice of certain documents filed in Grimsley I, and take
judicial notice of other relevant Grimsley I documents on our own initiative. See
Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
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3:09-cv-00680-ECR-VPC (“Grimsley II”), respectively. Grimsley appeals from
the district court’s dismissal of Grimsley II. We affirm.1
When the district court denied Grimsley leave to add his retaliation claim in
Grimsley I, Grimsley had options. He could have moved to stay Grimsley I pending
his exhaustion of the retaliation claim before the EEOC. Alternatively, he could
have litigated his discrimination claims to their conclusion, and then appealed the
district court’s denial of leave to this court. See Bouman v. Block, 940 F.2d 1211,
1228-29 (9th Cir. 1991) (plaintiff could add unexhausted retaliation claim in her
discrimination suit because the retaliation claim was “reasonably related” to the
discrimination action). But see Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 644-
46 (9th Cir. 2003) (unexhausted retaliation claim was not “reasonably related” to
discrimination claim because the allegedly retaliatory acts did not “fall under an
investigation that the EEOC would have conducted”).
Grimsley’s options did not, however, include the right to bring his retaliation
claim in a new action. See Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688

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(9th Cir. 2007) (“‘[T]he fact that plaintiff was denied leave to amend does not give
h[er] the right to file a second lawsuit based on the same facts.’” (quoting Hartsel
Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 989 (10th Cir. 2002)
(second alteration in original))). As we explained in Adams, a district court may
dismiss an action as “duplicative” of an earlier action if “‘assuming that the first
suit were already final, the second suit could be precluded pursuant to claim
preclusion.’” Id. (quoting Hartsel, 296 F.3d at 987 n.1). Grimsley II could be
precluded pursuant to claim preclusion by Grimsley I because the two actions
involve identical parties and arise from the same cause of action. See id. at 688-89.
We hold that the district court did not abuse its discretion by dismissing Grimsley II
as duplicative of Grimsley I.
In addition, Grimsley’s counterclaim theory in Grimsley II fails to state a
claim on which relief may be granted. To show retaliation under the ADEA or Title
VII, an employee must show “that (1) she was engaging in protected activity, (2)
the employer subjected her to an adverse employment decision, and (3) there was a
causal link between the protected activity and the employer’s action.” Bergene v.
Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1140-41 (9th
Cir. 2001); see also Poland v. Chertoff, 494 F.3d 1174, 1179-80 & n.1 (9th Cir.
2007) (the standard for retaliation under the ADEA is the same as the standard for

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retaliation under Title VII). Although “[t]he scope of [Title VII’s] antiretaliation
provision extends beyond workplace-related or employment-related retaliatory acts
and harm,” the provision “protects an individual not from all retaliation but from
retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67 (2006). To prove a cognizable injury, “a plaintiff must show
that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 68 (internal
quotation marks removed).
Grimsley suggests that counterclaims may be actionably retaliatory in “rare
cases,” such as when they have no basis in law and fact and were filed with
retaliatory motive. However, adopting this test would not aid Grimsley, because
Charles River’s counterclaims did have an arguable basis in law and fact. Grimsley
agreed to repay his relocation reimbursement if he was terminated within a year,
and Nevada law gave Charles River a basis for arguing that Grimsley could not use
extrinsic evidence to contradict the unambiguous meaning of this agreement. Kaldi
v. Farmers Ins. Exch., 21 P.3d 16, 22-23 (Nev. 2001). Nevada law also provided
some support for the theory that Grimsley’s return of allegedly converted property
did not nullify a conversion, but only mitigated damages. Evans v. Dean Witter

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Reynolds, Inc., 5 P.3d 1043, 1049 (Nev. 2000) (quoting and overruling on other
grounds Bader v. Cerri, 609 P.2d 314, 317 (Nev. 1980)). Indeed, the district court
in Grimsley I granted summary judgment to Charles River on its contract
counterclaim and held that its conversion counterclaim presented genuine issues of
material fact for trial. Charles River’s filing of the Grimsley I counterclaims did not
constitute a materially adverse employment action.
AFFIRMED.

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