NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAMELA ANNENBERG, No. 19-16031
Plaintiff-Appellant, D.C. No. 2:17-cv-03090-APG-NJK v.
CLARK COUNTY SCHOOL DISTRICT, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Submitted June 9, 2020** San Francisco, California
Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District Judge.
Pamela Annenberg is employed as a special-education teacher by defendant
Clark County School District (“District”). Annenberg appeals the district court’s
* 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). *** The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota, sitting by designation. grant of summary judgment in favor of the District on her failure-to-accommodate,
disparate-treatment, retaliation, and interference claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, 12203. We have jurisdiction under
28 U.S.C. § 1291. Our review is de novo. United States v. JP Morgan Chase
Bank Account No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir. 2016). Viewing the
facts in the light most favorable to Annenberg, id., we affirm.
Failure-to-accommodate claim. The district court properly granted
summary judgment on Annenberg’s failure-to-accommodate claim because there is
no evidence that Annenberg was denied a reasonable accommodation required by
the ADA. Annenberg contends that the District agreed that she would not have to
complete more than two Individual Education Plans (“IEPs”) per month, and that
the District violated that agreement. But Annenberg’s claim is not for breach of
contract; it is for violation of a federal statute. Under the ADA, the District “need
only provide some reasonable accommodation.” Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1089 (9th Cir. 2002). The fact that the District failed to provide a
particular accommodation—specifically, the two-IEP-per-month accommodation
that it allegedly promised—does not mean that the District did not provide a
reasonable accommodation. To prove a violation of the ADA, Annenberg must
show that the accommodation that was actually provided was unreasonable. She
made no effort to do so, and thus the District was entitled to summary judgment on
2 19-16031 her failure-to-accommodate claim.
Disparate-treatment claim. The district court properly granted summary
judgment on Annenberg’s disparate-treatment claim because Annenberg failed to
show that she suffered an adverse employment action. In the context of a
discrimination claim, an adverse employment action is one that “materially affects
the compensation, terms, conditions, or privileges of employment.” Davis v. Team
Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal quotation marks and
alterations omitted). None of the allegedly discriminatory acts cited by Annenberg
rise to the level of an adverse employment action, and thus the District was entitled
to summary judgment on the disparate-treatment claim.
Retaliation claim. Annenberg argues that her supervisor, Jennifer Ludtke,
retaliated against her after she filed an administrative charge alleging disability
discrimination. Annenberg does not have direct evidence of retaliation, and thus
her claim is analyzed under the familiar McDonnell Douglas framework. See
Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014).
Annenberg complains that Ludtke retaliated against her by rating her as
“minimally effective” on her year-end performance evaluation, issuing an oral
warning based on false allegations that Annenberg fell asleep in class, and
criticizing her lesson plans and classroom demeanor. The district court found that
none of these acts qualified as adverse employment actions for purposes of
3 19-16031 Annenberg’s retaliation claim for the same reasons that they did not qualify as
adverse employment actions for purposes of Annenberg’s disparate-treatment
claim.
The district court’s analysis was flawed because “retaliation claims may be
brought against a much broader range of employer conduct than substantive claims
of discrimination.” Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1021
(9th Cir. 2018) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
67–68 (2006)). As noted, something done by an employer is not an adverse
employment action for purposes of a discrimination claim unless it materially
alters the terms or conditions of the plaintiff’s employment. But something done
by an employer is an adverse employment action for purposes of a retaliation
claim—even if it does not materially alter a term or condition of employment—as
long as it would deter a reasonable employee from engaging in the protected
activity. See Ray v. Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000).
Ludtke’s criticism of Annenberg’s lesson plans and classroom demeanor do
not qualify as adverse employment actions even under this less-demanding
standard. These are the types of “trivial harms” or “minor annoyances” that cannot
support a claim of retaliation under the ADA. Burlington, 548 U.S. at 68; see also
Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112 (9th Cir. 2000) (finding that
“increased criticism” does not constitute an adverse employment action). But
4 19-16031 Ludtke’s formal warning to Annenberg and Ludtke’s evaluation of Annenberg’s
performance as “minimally effective”—both of which became part of Annenberg’s
personnel file, and both of which put Annenberg at risk of more serious discipline
in the future—could deter a reasonable employee from engaging in protected
activity. See Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 750 (9th Cir.
2010) (finding that a “verbal warning” and “an unsatisfactory evaluation” were
adverse actions for purposes of First Amendment retaliation claim); see also
Coszalter v. City of Salem,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAMELA ANNENBERG, No. 19-16031
Plaintiff-Appellant, D.C. No. 2:17-cv-03090-APG-NJK v.
CLARK COUNTY SCHOOL DISTRICT, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Submitted June 9, 2020** San Francisco, California
Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District Judge.
Pamela Annenberg is employed as a special-education teacher by defendant
Clark County School District (“District”). Annenberg appeals the district court’s
* 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). *** The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota, sitting by designation. grant of summary judgment in favor of the District on her failure-to-accommodate,
disparate-treatment, retaliation, and interference claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, 12203. We have jurisdiction under
28 U.S.C. § 1291. Our review is de novo. United States v. JP Morgan Chase
Bank Account No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir. 2016). Viewing the
facts in the light most favorable to Annenberg, id., we affirm.
Failure-to-accommodate claim. The district court properly granted
summary judgment on Annenberg’s failure-to-accommodate claim because there is
no evidence that Annenberg was denied a reasonable accommodation required by
the ADA. Annenberg contends that the District agreed that she would not have to
complete more than two Individual Education Plans (“IEPs”) per month, and that
the District violated that agreement. But Annenberg’s claim is not for breach of
contract; it is for violation of a federal statute. Under the ADA, the District “need
only provide some reasonable accommodation.” Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1089 (9th Cir. 2002). The fact that the District failed to provide a
particular accommodation—specifically, the two-IEP-per-month accommodation
that it allegedly promised—does not mean that the District did not provide a
reasonable accommodation. To prove a violation of the ADA, Annenberg must
show that the accommodation that was actually provided was unreasonable. She
made no effort to do so, and thus the District was entitled to summary judgment on
2 19-16031 her failure-to-accommodate claim.
Disparate-treatment claim. The district court properly granted summary
judgment on Annenberg’s disparate-treatment claim because Annenberg failed to
show that she suffered an adverse employment action. In the context of a
discrimination claim, an adverse employment action is one that “materially affects
the compensation, terms, conditions, or privileges of employment.” Davis v. Team
Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal quotation marks and
alterations omitted). None of the allegedly discriminatory acts cited by Annenberg
rise to the level of an adverse employment action, and thus the District was entitled
to summary judgment on the disparate-treatment claim.
Retaliation claim. Annenberg argues that her supervisor, Jennifer Ludtke,
retaliated against her after she filed an administrative charge alleging disability
discrimination. Annenberg does not have direct evidence of retaliation, and thus
her claim is analyzed under the familiar McDonnell Douglas framework. See
Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014).
Annenberg complains that Ludtke retaliated against her by rating her as
“minimally effective” on her year-end performance evaluation, issuing an oral
warning based on false allegations that Annenberg fell asleep in class, and
criticizing her lesson plans and classroom demeanor. The district court found that
none of these acts qualified as adverse employment actions for purposes of
3 19-16031 Annenberg’s retaliation claim for the same reasons that they did not qualify as
adverse employment actions for purposes of Annenberg’s disparate-treatment
claim.
The district court’s analysis was flawed because “retaliation claims may be
brought against a much broader range of employer conduct than substantive claims
of discrimination.” Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1021
(9th Cir. 2018) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
67–68 (2006)). As noted, something done by an employer is not an adverse
employment action for purposes of a discrimination claim unless it materially
alters the terms or conditions of the plaintiff’s employment. But something done
by an employer is an adverse employment action for purposes of a retaliation
claim—even if it does not materially alter a term or condition of employment—as
long as it would deter a reasonable employee from engaging in the protected
activity. See Ray v. Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000).
Ludtke’s criticism of Annenberg’s lesson plans and classroom demeanor do
not qualify as adverse employment actions even under this less-demanding
standard. These are the types of “trivial harms” or “minor annoyances” that cannot
support a claim of retaliation under the ADA. Burlington, 548 U.S. at 68; see also
Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112 (9th Cir. 2000) (finding that
“increased criticism” does not constitute an adverse employment action). But
4 19-16031 Ludtke’s formal warning to Annenberg and Ludtke’s evaluation of Annenberg’s
performance as “minimally effective”—both of which became part of Annenberg’s
personnel file, and both of which put Annenberg at risk of more serious discipline
in the future—could deter a reasonable employee from engaging in protected
activity. See Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 750 (9th Cir.
2010) (finding that a “verbal warning” and “an unsatisfactory evaluation” were
adverse actions for purposes of First Amendment retaliation claim); see also
Coszalter v. City of Salem, 320 F.3d 968, 976–77 (9th Cir. 2003) (adopting
“reasonably likely to deter” standard in the context of First Amendment retaliation
claims).
We nevertheless affirm the district court’s dismissal of Annenberg’s
retaliation claim. Even assuming that Annenberg can establish a prima facie case
of retaliation, her claim fails at the remaining steps of the McDonnell Douglas
inquiry. The District put forward legitimate, non-discriminatory reasons for its
actions, and Annenberg failed to raise a genuine issue of material fact as to
whether those reasons were pretextual. The District submitted evidence that
Ludtke issued the oral warning following a report from the general education
teacher with whom Annenberg was cooperatively teaching—a report that was later
corroborated by several students—that Annenberg had fallen asleep during class.
The District also submitted evidence that Annenberg’s “minimally effective” rating
5 19-16031 was based on several documented deficiencies in Annenberg’s teaching
performance under the Nevada Education Performance Framework. Annenberg
disagrees with the District’s conclusions—she claims, for example, that she only
appeared to be sleeping in class—but she has failed to introduce evidence that
would allow a jury to find that the District’s proffered explanations are pretextual.
For that reason, we affirm the dismissal of Annenberg’s retaliation claim. See
Curley, 772 F.3d at 633–34 (finding that absent evidence of pretext, summary
judgment with respect to plaintiff’s retaliation claim was appropriate); Stegall v.
Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003) (citation omitted)
(explaining that circumstantial evidence of pretext must be both “specific” and
“substantial” to survive summary judgment).
Interference claim. Finally, the district court declined to consider
Annenberg’s claim for interference because she did not give fair notice that she
was pursuing such a claim until she submitted a memorandum in opposition to the
District’s motion for summary judgment. Having reviewed the entire course of the
proceedings before the district court—and not just the fragments in the complaint
to which Annenberg now points—we have some sympathy for the district court’s
decision. We need not address the issue, however, because even if Annenberg’s
interference claim were preserved, the claim could not survive a motion for
summary judgment.
6 19-16031 In order to state a claim for interference, Annenberg must, at a minimum,
identify a right to which she was entitled under the ADA and allege that the
District interfered with that right in some way. See 42 U.S.C. § 12203(b).
Annenberg mainly argues that the District interfered with her rights under the
ADA by failing to limit the number of IEPs that she was required to complete to
two per month.1 As already discussed, however, Annenberg has not established
that she had a right to this accommodation under the ADA. Moreover, Annenberg
has not introduced evidence of any specific instance of coercion, intimidation,
threatening conduct, or interference related to her exercise of her supposed right to
decline to complete more than two IEPs per month. See id. And finally,
Annenberg has failed to submit any evidence that she suffered a “distinct and
palpable injury” as a result of any interference with her purported right under the
ADA not to be required to complete more than two IEPs per month. See Brown v.
City of Tucson, 336 F.3d 1181, 1193 (9th Cir. 2003) (citation omitted).
AFFIRMED.
1 Annenberg also argues that the District interfered with her right under the ADA to sit down while teaching. But this accommodation has nothing to do with Annenberg’s post-perfusion syndrome, which is the only disability at issue in this litigation.
7 19-16031