Jae L. Richardson v. JENNY R. YANG, Chair of the United States Equal Employment Opportunity Commission

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAE L. RICHARDSON,
Plaintiff-Appellant,
v.
JENNY R. YANG, Chair of the United
States Equal Employment Opportunity
Commission,
Defendant-Appellee.
No. 16-15989
D.C. No. 2:14-cv-01882-SRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted 8/30/2018**
Before: FARRIS, D.W. NELSON, and TROTT, Circuit Judges.
Jae L. Richardson appeals pro se from the district court’s summary judgment
in her employment action alleging violations of Title VII. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Vasquez v. County of Los Angeles,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Richardson’s
motion for oral argument is denied.
FILED
SEP 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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349 F.3d 634, 639 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Richardson’s
discrimination claim because Richardson failed to raise a genuine dispute of
material fact as to whether she was performing according to defendant’s legitimate
expectations, whether similarly situated individuals were treated more favorably,
and whether defendant’s legitimate, nondiscriminatory reasons for her demotion
and denial of promotion were pretextual. See id. at 640 & n.5 (setting forth
elements of a prima facie case of discrimination under Title VII and the burden-
shifting framework). Contrary to Richardson’s contentions, the district court did
not err in considering Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998),
a sex discrimination case, because the burden-shifting framework discussed by the
court in Godwin applies in cases of race discrimination. See Zeinali v. Raytheon
Co., 636 F.3d 544, 554 (9th Cir. 2011) (citing Godwin while reviewing allegation
of race discrimination).
The district court properly granted summary judgment on Richardson’s
hostile work environment claim because Richardson failed to raise a genuine
dispute of material fact as to whether she was subjected to sufficiently severe or
pervasive conduct. See Vasquez, 349 F.3d at 642 (setting forth elements of a prima

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facie case of hostile work environment under Title VII and explaining that in
determining whether conduct violates Title VII, courts look at “all the
circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance”
(citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Richardson’s
retaliation claim because Richardson failed to raise a genuine dispute of material
fact as to whether there was a causal relationship between her engagement in a
protected activity and a materially adverse employment action. See Westendorf v.
W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir. 2013) (setting forth
elements of a prima face case of retaliation under Title VII and explaining that the
plaintiff must show protected conduct was a “but-for cause” of the adverse
employment action).
The district court properly concluded that Richardson failed to exhaust those
claims that she failed to raise in her grievances with the Equal Employment
Opportunity Commission. See Freeman v. Oakland Unified Sch. Dist., 291 F.3d
632, 638-39 (9th Cir. 2002).

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The district court did not abuse its discretion by considering evidence that
defendant received third party complaints regarding Richardson. See Haddad v.
Lockheed Cal. Corp., 720 F.2d 1454, 1456 (9th Cir. 1983) (holding that complaints
are not hearsay when offered to show employer’s receipt of complaints and “non-
discriminatory intent in its employment practices”).
We do not consider issues or arguments not specifically and distinctly raised
and argued in the opening brief, or issues or arguments raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Nor do we
consider evidence that was not presented to the district court. See Kirshner v.
Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988).
AFFIRMED.

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