Margarita Q. Taitano v. RAY MABUS, Secretary of the Navy

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Ray Mabus is substituted for his predecessor, Gordon R. England, as
**
Secretary of the Navy, pursuant to Fed. R. App. P. 43(c)(2).
The panel unanimously finds this case suitable for decision without***
oral argument. See Fed. R. App. P. 34(a)(2).
GT/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA Q. TAITANO,
Plaintiff - Appellant,
v.
RAY MABUS, Secretary of the Navy,**
Defendant - Appellee.
No. 07-17313
D.C. No. CV-05-00028-FMT
MEMORANDUM *
Appeal from the United States District Court
for the District of Guam
Frances M. Tydingco-Gatewood, Chief District Judge, Presiding
Submitted November 17, 2009***
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Margarita Q. Taitano appeals pro se from the district court’s summary
judgment for the Secretary of the United States Navy in her employment
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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discrimination action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo, Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002), and
affirm.
The district court properly granted summary judgment on Taitano’s Title VII
retaliation claims because she failed to establish a prima facie case. See id. at 1118
(affirming summary judgment for the Navy on retaliation claim where plaintiff
failed to make out a prima facie case that (1) she engaged in a protected activity,
(2) she suffered an adverse employment decision, and (3) there was a causal link
between plaintiff’s activity and the employment decision).
Taitano’s above-average evaluation did “not rise to the level of an adverse
employment action by the employer.” Id. (explaining that a “performance
evaluation that [is] mediocre (rather than ‘sub-average’) and that [does] not give
rise to any further negative employment action [does] not violate Title VII”).
Taitano’s temporary re-assignment to another section within her department
also did not constitute an adverse employment decision, because the record
indicates that Taitano preferred the re-assignment given that she did not have to
report to the supervisor with whom she had a strained relationship. See Burlington
N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“The antiretaliation

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provision [of Title VII] protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.”).
The determination that Taitano’s position was “excess,” and would be
eventually phased-out, was made before Taitano engaged in protected activity, and
therefore there can be no causal link between the two. See Lyons, 307 F.3d at 1118
(explaining that a causal link between plaintiff’s activity and the employment
decision is a necessary element of a successful retaliation claim).
We do not consider the district court’s disposition of Taitano’s disparate
treatment or hostile work environment claims, because Taitano develops no
argument as to those rulings. See Indep. Towers of Wash. v. Washington, 350 F.3d
925, 929 (9th Cir. 2003) (explaining that issues not argued on appeal are deemed
abandoned); see also Pierce v. Multnomah County, 76 F.3d 1032, 1037 n.3 (9th
Cir. 1996) (applying rule to pro se litigants).
Nor do we consider issues Taitano raises for the first time on appeal. See
MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir. 2006).
Taitano’s remaining contentions are unpersuasive.
AFFIRMED.

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