Chinea-Varela v. CBS Broadcasting Inc.

104 F. App'x 619

Opinion

MEMORANDUM

**

Migdia Chinea-Varela filed discrimination, retaliation, and harassment claims against CBS Broadcasting, Inc. (CBS), Writers Guild of America (WGA), and named defendants Frank Pierson, Brian Walton, Jeff Sagansky, and Charles Se-gars pursuant to Title VII, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940, et seq. This is Varela’s second appeal to this court. A panel of this court agreed with the district court that her complaint was “verbose, lengthy and convoluted,” in dereliction of Fed.R.Civ.P. 8(a) and Fed.R.Civ.P. 8(e)(1), but remanded so that Varela could amend her complaint. See Chinea-Varela v. Columbia Broadcasting Systems, Inc., 4 Fed. Appx. 404, 405-6 (9th Cir.2001). On remand, the district court dismissed with prejudice Varela’s third amended complaint for all of her claims against WGA and the named defendants. The district court also dismissed all of Varela’s claims against CBS except for her retaliation claim. With respect to that claim, the district court granted summary judgment.

Varela alleged that an affirmative action trainee program that WGA negotiated and that CBS executed from 1993 to 1995 discriminated against Hispanic writers on the basis of their national origin. We agree with the district court that Varela entirely failed to demonstrate how the program had a disparate impact on Hispanic scriptwriters, or how it resulted in Varela’s being discriminated against in consideration for regular staff writing positions at CBS. See Atonio v. Wards Cove Packing Co., Inc., 275 F.3d 797, 800-02 (9th Cir.2001); Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 537-38 (9th Cir.1982).

Varela also alleged that the defendants retaliated against her when she voiced her objections to the affirmative action program. Varela failed to demonstrate how WGA or any of the named defendants retaliated against her where none of them took (or indeed, even could take) adverse employment action against her. The district court properly dismissed these claims. Neither did Varela show, with respect to CBS, that she was rejected for any specific writing positions for which she was qualified at CBS, or that producer Frank Dawson’s comment that Varela was labeled a “trouble-maker,” was predicated on any adverse employment action taken by CBS. See Lyons v. England, 307 F.3d 1092, 1118 (9th Cir.2002). Similarly, Varela failed to demonstrate that Craig Anderson Productions was in any way affiliated with CBS, or that the production company refused to hire Varela at the direction of CBS. See Morgan v. Safeway Stores, Inc., 884 F.2d 1211, 1214 (9th Cir.1989). The district court properly granted summary judgment on this claim.

Varela claimed that the WGA harassed her based on the use of derogatory epithets that were posted on a computer bulletin board system. We affirm the district court’s decision to dismiss this claim. The allegedly harassing messages were not pervasive or severe, did not occur in the workplace, were not sent by Varela’s employers, supervisors, or colleagues, and did not alter the conditions of Varela’s employment or create an abusive working environment. See Harris v. Forklift Systems Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Varela’s allegation that CBS harassed her was also properly dismissed because the facts in the record do not support the claim.

We also affirm the district court’s denials of Varela’s motions to disqualify Judge Letts, to certify a class action, and for leave to amend her complaint. Finally, we do not reach CBS’s cross-appeal on administrative exhaustion because we conclude that the district court’s judgment dismissed all of Varela’s claims. The judgment is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.