Laura Leskinen v. Sonny Perdue

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 30, 2020
• Docket: 19-17390
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LAURA LESKINEN, No. 19-17390

Plaintiff-Appellant, D.C. No. 2:18-cv-00453-TLN-KJN v.

SONNY PERDUE, in his official capacity MEMORANDUM* as the Secretary of the USDA,

Defendant-Appellee,

and

UNITED STATES DEPARTMENT OF AGRICULTURE; CHRISTINE MESSER; CURT STOCK,

Defendants.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted November 25, 2020** San Francisco, California

* 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). Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.

Laura Leskinen appeals from the district court’s grant of summary judgment

in favor of the Secretary of Agriculture. Because the facts are known to the

parties, we repeat them only as necessary to explain our decision.

I

The district court correctly granted summary judgment against Leskinen’s

sexual harassment claims.

A

Leskinen cannot prevail on her claim for quid pro quo sexual harassment

because she has not identified any tangible employment action that Stock allegedly

took against her as a result of her rejection of his alleged sexual advances. See

Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007); Holly D. v.

Cal. Inst. of Tech., 339 F.3d 1158, 1169–71 (9th Cir. 2003).

B

Leskinen cannot prevail on her hostile work environment claim because she

has not alleged instances of “conduct that [were] sufficiently severe or pervasive to

alter the conditions of her employment and create an abusive working

environment.” Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1016 (9th Cir.

2018) (internal quotation marks and alteration omitted); see also Faragher v. City

of Boca Raton, 524 U.S. 775, 788 (1998) (holding that, to be actionable, the

2 alleged conduct “must be extreme” and “the sporadic use of abusive language,

gender-related jokes, and occasional teasing” are not enough (internal quotation

marks omitted)).

C

To the extent that Leskinen challenges the denial of a supposed “disparate

treatment” claim on its merits, any such claim fails because she does not allege that

“similarly situated individuals outside her protected class were treated more

favorably,” Campbell, 892 F.3d at 1012, apart from her other harassment claims

discussed above.

II

The district court also correctly granted summary judgment on Leskinen’s

retaliation claim.

Even assuming that Leskinen has established a prima facie claim of

retaliation, the Secretary has produced evidence of a legitimate, non-retaliatory

reason for her termination: by failing to remain at least a half-time student at her

college, Leskinen was simply ineligible to continue participating in the Pathways

program. See 5 C.F.R. §§ 362.202, 362.203(b). The record evidence supports the

conclusion that Messer had begun to consider whether Leskinen needed to be

terminated for this reason before she received Leskinen’s “No Fear Letter.”

3 The burden thus shifts to Leskinen to show that the stated justification is

pretextual. See Campbell, 892 F.3d at 1022. Summary judgment was appropriate

because Leskinen failed to identify evidence in the record that could reasonably do

so. See id. at 1022–23. Contrary to Leskinen’s assertions, the record does not

reasonably support the conclusion that her supervisors had given their approval for

her to drop below half-time status at her college or that they had promised to

promote her out of the internship program once she completed 640 hours of work.1

Further, Leskinen’s mere “den[ial of] the credibility of the employer’s proffered

reasons is insufficient to withstand summary judgment.” Munoz v. Mabus, 630

F.3d 856, 865 (9th Cir. 2010).

III

None of Leskinen’s procedural or evidentiary objections merits reversal.

Leskinen’s argument that the practice of assigning pro se cases to magistrate

judges violates the Equal Protection Clause fails because she does has not

identified any authority to suggest that pro se plaintiffs are a suspect class, and the

decision to refer such matters to magistrate judges is rationally related to the

1 We also note that, contrary to the suggestion in her briefing on appeal, Leskinen has not pled a claim for a breach of contract based on this supposed “pre- employment agreement” to promote her.

4 court’s legitimate interest in efficient docket management. See, e.g., Pena v.

Lindley, 898 F.3d 969, 986 (9th Cir. 2018).

Leskinen’s argument that the magistrate judge should have been disqualified

for bias fails because she has not identified a pattern of conduct during the

litigation that would “reveal such a high degree of favoritism or antagonism as to

make fair judgment [by the magistrate judge] impossible.” Liteky v. United States,

510 U.S. 540, 555 (1994); see also id. (“[J]udicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.”).

The district court did not abuse its discretion in denying Leskinen’s request

for discovery because the court accepted Leskinen’s factual allegations as true—

including those where she disputed the claims of key witnesses—and thus

Leskinen’s hope generally to corroborate such allegations would not have affected

the court’s analysis of the merits of her claims. See, e.g., Sec. & Exch. Comm’n v.

Stein, 906 F.3d, 833 (9th Cir. 2018) (affirming denial of continuance to pursue

discovery where movant “did not explain how additional facts would preclude

summary judgment”); Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81

F.3d 881, 888 (9th Cir. 1996) (affirming denial of additional discovery where

plaintiff “listed a number of facts that, even if established, would not have

5 precluded summary judgment”). Further, Leskinen’s hope to depose witnesses so

that they might contradict their own declarations is not enough to demonstrate that

summary judgment was premature. See Cont’l Mar. of S.F., Inc. v. Pac. Coast

Metal Trades Dist. Council, 817 F.2d 1391, 1395 (9th Cir. 1987).

D

To the extent Leskinen means to challenge the district court’s decision

overruling several evidentiary objections she raised to the magistrate judge’s report

and recommendation, such challenge fails.

First, Leskinen’s reference to evidence regarding the timing of her

termination does not alter the court’s conclusion on her retaliation claim, because

such evidence simply supports her prima facie case for retaliation but does not

reasonably show that the Department’s stated rationale for her termination was

pretextual.

Second, the magistrate judge’s supposed failure to strike the declaration of

attorney Joseph Frueh is immaterial because both the magistrate judge and the

district court afforded the declaration no weight.

Finally, Leskinen’s reference to evidence relating to the administrative

investigation or other actions that occurred after she was terminated are irrelevant

to her claims regarding her treatment during her time with the Department, and

Leskinen has not alleged a cause of action based on the supposed inadequacy of

6 the investigation itself—nor could she under Title VII, see Ward v. Equal Emp’t

Opportunity Comm’n, 719 F.2d 311, 313 (9th Cir. 1983).

AFFIRMED.