Misty Brown v. Megan Brennan

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2024
• Docket: 21-16154
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MISTY DANIELLE BROWN, No. 21-16154

Plaintiff-Appellant, D.C. No. 3:19-cv-05797-JSC

v. MEMORANDUM* MEGAN J. BRENNAN, Post Master General,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding

Submitted January 17, 2024**

Before: D. NELSON, O’SCANNLAIN, and KLEINFELD, Circuit Judges.

Misty Danielle Brown appeals from judgment dismissing her retaliation

claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794, for failure to state a

claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). We have

jurisdiction under 28 U.S.C. § 1291, we review de novo, Curry v. Yelp Inc., 875

* 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). F.3d 1219, 1224 (9th Cir. 2017), and we affirm.

Under the Rehabilitation Act, “[a] prima facie case of retaliation requires a

plaintiff to show: ‘(1) involvement in a protected activity, (2) an adverse

employment action and (3) a causal link between the two.’” Coons v. Sec’y of U.S.

Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004) (quoting Brown v. City of

Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003)). To satisfy the second element, “the

employer’s actions must be harmful to the point that they could well dissuade a

reasonable worker from making or supporting a charge of discrimination.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).1 “[O]nly non-

trivial employment actions that would deter reasonable employees from [engaging

in a protected activity] will constitute actionable retaliation.” Brooks v. City of San

Mateo, 229 F.3d 917, 928 (9th Cir. 2000).

Brown’s pro se edited first amended complaint (“EFAC”) failed to

adequately allege an adverse employment action. First, the EFAC alleged that

Defendant assigned her “less desirable and harder to manage routes despite her

seniority.” This allegation is insufficient to state a claim of retaliation. The district

court correctly concluded that Brown failed to plausibly allege that her route

assignments were objectively less desirable. Indeed, Brown provided no context or

1 The parties agree that the Burlington Northern standard applies to claims under the Rehabilitation Act in addition to Title VII claims.

2 substance of the route change to determine whether it was objectively less

desirable so as to dissuade a reasonable worker from making a charge of

discrimination. See Burlington, 548 U.S. at 69 (considering a hypothetical change

in work schedule and noting that “[c]ontext matters”). Thus, Brown cannot rely on

this schedule change to form the basis of her prima facie retaliation claim.

Second, Brown alleged that Defendant wrongfully reclassified eight hours of

paid sick leave to leave without pay and, when notified of the error, took

approximately four weeks to correct it. The district court concluded that “a two to

four-week delay in payment of eight hours of wages . . . does not plausibly rise to

the level of an adverse employment action that would deter a reasonable employee

from pursuing a charge of discrimination.” The district court further noted that

regardless of any hardship that this error may have inflicted, “the action that

produced that hardship was not final, and was instead correctable; indeed, Plaintiff

alleges that Defendant offered a correction in the form of a pay adjustment.”

Defendant’s alleged delay in payment could not have dissuaded a reasonable

employee in Brown’s position from pursuing a discrimination complaint. As the

district court noted, Defendant’s action was subsequently corrected with a pay

adjustment, and the length of the delay in payment was not so severe so as to deter

a reasonable employee from pursuing a charge of discrimination. See Brooks, 229

F.3d at 929–30 (holding that re-scheduling a worker to an unfavorable shift and

3 denying her vacation preference are not adverse employment actions if

subsequently corrected by the employer). Because Brown cannot rely on this four-

week payment delay to form the basis of her prima facie retaliation claim, this

claim fails.

The district court also did not err by dismissing Brown’s hostile work

environment theory of retaliation.2 Brown has alleged a handful of discrete acts—

altering her time sheet, refusing to authorize emergency pay, failing to provide

timely notice of work assignments, and providing more difficult work assignments.

But she has not alleged severe or pervasive harassment. See Ray v. Henderson,

217 F.3d 1234, 1245 (9th Cir. 2000) (Title VII).

In sum, the district court did not err in dismissing Brown’s discrete acts

claims of retaliation, because the EFAC failed to adequately allege adverse

employment actions, and the district court correctly dismissed Brown’s hostile

environment claim of retaliation, because the alleged harassment was not severe or

pervasive enough.

The judgment of the district court is affirmed. Each party shall bear its own

costs on appeal.

AFFIRMED.

2 We assume without deciding that hostile work environment claims are cognizable under the Rehabilitation Act.