Kimberly Noseworthy v. Laura Hope

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 31, 2024
• Docket: 23-55760
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 31 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KIMBERLY NOSEWORTHY, No. 23-55760

Plaintiff-Appellant, D.C. No. 5:20-cv-01142-JGB-SP v.

LAURA HOPE, SUSAN HARDIE, MEMORANDUM* CHAFFEY COMMUNITY COLLEGE, and DOES 1 through 10, Inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted December 3, 2024 Pasadena, California

Before: SANCHEZ and DE ALBA, Circuit Judges, and ZIPPS,** Chief District

Judge.

Kimberly Noseworthy appeals the district court’s order granting Defendants

Chaffey Community College District (the “District”), Laura Hope, and Susan

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer G. Zipps, Chief United States District Judge for the District of Arizona, sitting by designation. Hardie’s motion for summary judgment. We review de novo an order granting

summary judgment, and we “determine whether, viewing the evidence in the light

most favorable to [Noseworthy], there are any genuine issues of material fact and

whether the district court correctly applied the relevant substantive law.” Killgore

v. SpecPro Pro. Servs., LLC, 51 F.4th 973, 981-82 (9th Cir. 2022) (citation

omitted). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Noseworthy alleges that Hope and Hardie took various adverse

employment actions in retaliation for her exercise of protected speech. To state a

First Amendment retaliation claim, Noseworthy must show in part that “the

relevant speech was a substantial or motivating factor in the adverse employment

action.” Barone v. City of Springfield, 902 F.3d 1091, 1098 (9th Cir. 2018)

(citation omitted). Even assuming Noseworthy engaged in protected speech and

that Hope and Hardie’s conduct amounted to an adverse employment action,

Noseworthy offers no triable evidence or analysis establishing that her speech was

a substantial or motivating factor for their conduct. “A plaintiff’s belief that a

defendant acted from an unlawful motive, without evidence supporting that belief,

is no more than speculation or unfounded accusation . . . .” Carmen v. San

Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001). We agree that

Noseworthy has failed to establish a prima facie case for First Amendment

retaliation and affirm the grant of summary judgment. See Dahlia v. Rodriguez,

2 735 F.3d 1060, 1067 n.4 (9th Cir. 2013).

2. Noseworthy similarly fails to establish a genuine dispute of material

fact as to her claim that the District discriminated against her because of her age in

violation of California’s Fair Employment and Housing Act (“FEHA”). See Cal.

Gov’t Code § 12940(a). To allege a prima facie case of age discrimination,

Noseworthy was required in part to “provide evidence” that “suggests [a]

discriminatory motive” behind an adverse employment action. Guz v. Bechtel

Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000). Noseworthy provides no evidence

suggesting that the District was motivated by her age in taking various alleged

adverse employment actions. She alleges only two age-related incidents in support

of her claim. The first involves the alleged termination of a different employee

allegedly because of his age, which is not evidence of discrimination against

Noseworthy because of her age. The second involves a supervisor’s statement that

Noseworthy may have felt upset about a less experienced employee completing

Noseworthy’s work because Noseworthy “would be retiring soon.” However,

Noseworthy admitted that “everybody talks generally about retirement” and that

her supervisor did not urge or suggest Noseworthy should retire. In the absence of

any evidence suggesting a discriminatory motive, we affirm the district court’s

grant of summary judgment.

3. Noseworthy’s third claim alleging that the District failed to prevent

3 discrimination against her in violation of the FEHA, see Cal. Gov’t Code

§ 12940(k), is treated by California courts as derivative of a finding of actual

discrimination. See Carter v. Dep’t of Veterans Affairs, 135 P.3d 637, 644 n.4

(Cal. 2006); Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir.

2017). Because we conclude that Noseworthy has not alleged a claim for age

discrimination, her derivative claim for failure to prevent age discrimination

necessarily fails as well. See Merrick, 867 F.3d at 1150.

4. In her fourth claim, Noseworthy alleges that the District retaliated

against her because she engaged in protected activity in violation of the FEHA.

See Cal. Gov’t Code § 12940(h). To allege a prima facie case for retaliation,

Noseworthy must show that “a causal link existed between the protected activity

and the employer’s action.” Bailey v. San Francisco Dist. Att’y’s Off., 552 P.3d

433, 450 (Cal. 2024) (citation omitted). Noseworthy alleges that she engaged in

various protected activities but does not present any evidence or develop any

analysis establishing a causal connection between an alleged protected activity and

a resulting adverse employment action. To the extent she asks us to infer a causal

link by circumstantial evidence, she fails to meaningfully develop this argument.

See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not

manufacture arguments for an appellant, and a bare assertion does not preserve a

claim . . . .”). We therefore affirm the district court’s grant of summary judgment

4 as to her claim of retaliation.

5. Finally, Noseworthy alleges that Defendants’ age-based harassment

created a hostile work environment in violation of the FEHA. See Cal. Gov’t

Code § 12940(j)(1). To state a claim for harassment under the FEHA, Noseworthy

must show that she was harassed severely enough to create a hostile work

environment “because she belonged to” a protected group. See Lawler v.

Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013). Noseworthy has not

made this showing. She cites no evidence connecting any alleged adverse

employment action to her age and relies on the same two incidents she raised under

her second claim, which do not satisfy her burden here for the same reasons

expressed above. Accordingly, we affirm the district court’s grant of summary

judgment as to this claim.

AFFIRMED.