Alisha Silbaugh v. Pete Buttigieg

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2022
• Docket: 21-35694
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALISHA R. SILBAUGH, an individual, No. 21-35694

Plaintiff-Appellant, D.C. No. 2:17-cv-01759-RSM

v. MEMORANDUM* PETE BUTTIGIEG, Secretary of the Department of Transportation,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief District Judge, Presiding

Submitted May 19, 2022** Seattle, Washington

Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.

Alisha Silbaugh appeals the district court’s grant of summary judgment in

favor of the U.S. Department of Transportation (DOT) on retaliation claims that

she brought under Title VII and the Rehabilitation Act. We have jurisdiction

* 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). pursuant to 28 U.S.C. § 1291, and we affirm.

1. Because Silbaugh has not demonstrated that an activity protected under

Title VII or the Rehabilitation Act served as the motivation for her termination, the

district court correctly determined that Silbaugh failed to establish a prima facie

case of retaliation. See 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 794(d) (Rehabilitation

Act incorporating ADA’s prohibition against retaliation). “[R]etaliation claims

require proof that the desire to retaliate was the but-for cause of the challenged

employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352

(2013) (citation omitted). The FAA has consistently maintained that Silbaugh’s

lack of candor was the sole reason for Silbaugh’s termination. Silbaugh’s

proposed termination letter is insufficient to establish that her termination was

driven by a desire to retaliate for the filing of her equal employment opportunity

(EEO) complaint or her participation in the EEO process.

2. Neither Title VII’s participation clause nor the Rehabilitation Act protect

lying during the course of an employer’s internal investigation. See Vasconcelos v.

Meese, 907 F.2d 111, 113 (9th Cir. 1990). The parties do not dispute that Silbaugh

lied about the nature of her relationship and interactions with coworker Kern

during the course of the FAA’s internal investigation, so Vasconcelos controls.

AFFIRMED.