Lynn M. Bleeker v. TOM VILSACK, Secretary, United States Department of Agriculture

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Marvin J. Garbis, Senior United States District Judge**
for the District of Maryland, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNN M. BLEEKER,
Plaintiff - Appellant,
v.
TOM VILSACK, Secretary, United States
Department of Agriculture,
Defendant - Appellee.
No. 10-17900
DC No. 3:07-cv-0413 SMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted February 14, 2012
San Francisco, California
Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.**
FILED
FEB 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Lynn Bleeker – formerly an employee of the United States Forest Service,
an agency within the United States Department of Agriculture (“USDA”) – appeals
the district court’s grant of summary judgment to the Secretary of Agriculture on
two claims for retaliation in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”). 42 U.S.C. § 2000e, et seq. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
We review de novo the district court’s grant of summary judgment, Ray v.
Henderson, 217 F.3d 1234, 1239-40 (9th Cir. 2000), and may affirm the decision
on any ground supported by the record, Tahoe–Sierra Pres. Council, Inc. v. Tahoe
Reg’l Planning Agency, 322 F.3d 1064, 1076-77 (9th Cir. 2003).
To establish a prima facie case of retaliation under Title VII, Bleeker must
show that: (1) she engaged in an activity protected by Title VII; (2) her employer
subjected her to an adverse employment action; and (3) a causal link exists
between the protected activity and the adverse employment action. Thomas v. City
of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004).
There is no dispute that Bleeker engaged in activity protected under Title
VII. Bleeker has also made a prima facie case that the USDA’s failure to extend
her term appointment, while it extended the appointments of other similarly
situated employees, constituted an adverse employment action. Even inaction – a

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failure to renew or extend an employment contract – can count as an adverse
employment action in some circumstances. See Ruggles v. Cal. Polytechnic State
Univ., 797 F.2d 782, 785-86 (9th Cir. 1986) (failure to hire can be an adverse
employment action for purposes of anti-retaliation provision).
Bleeker, however, has not adequately tied the adverse employment action to
her protected activity. Although in some circumstances the requisite causal link
may be inferred from temporal proximity, see Ray, 217 F.3d at 1244, Bleeker does
not press that argument here. And the record lacks any evidence that the
authorized decisionmakers failed to extend Bleeker’s appointment because of her
protected activity – or that they even knew about the activity. See Vasquez v. Cty.
of L.A., 349 F.3d 634, 640 (9th Cir. 2003) (explaining that, where a coworker who
had displayed discriminatory animus in the past was not the decisionmaker, the
plaintiff would have to show “a nexus between [that coworker’s] discriminatory
[animus] and [the] subsequent employment decisions”).
Accordingly, Bleeker has not established a prima facie case of retaliation.
Thus, the district court did not err in granting summary judgment to the USDA on
Bleeker’s retaliation claims.
AFFIRMED.

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