Patricia Barnes v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2020
• Docket: 19-17203
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRICIA G. BARNES, No. 19-17203

Plaintiff-Appellant, D.C. No. 3:18-cv-00199-MMD-WGC v.

ANDREW M. SAUL, Commissioner of MEMORANDUM* Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted December 11, 2020 San Francisco, California

Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges.

Patricia Barnes applied at age sixty for one of five attorney–advisor positions

in the office of the Social Security Administration (SSA) in Reno, Nevada. Not

offered a job, she sued the SSA pro se, asserting four claims: (1) disparate-treatment

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 age discrimination under the Age Discrimination in Employment Act (ADEA), (2)

disparate-impact age discrimination under the ADEA, (3) reprisal (retaliation) under

the ADEA, and (4) retaliation under Title VII of the 1964 Civil Rights Act. Barnes

appeals the district court’s order dismissing her complaint for failure to state a claim.

We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM the district court’s

dismissal of Barnes’s disparate-treatment, ADEA reprisal, and Title VII retaliation

claims but REVERSE the dismissal of Barnes’s disparate-impact claim and

REMAND for further proceedings.

We review de novo an order of dismissal under Federal Rule of Civil

Procedure 12(b)(6). Depot, Inc. v. Caring for Montanans, Inc., 915 F.3d 643, 652

(9th Cir. 2019). To state a plausible claim for relief, a plaintiff is not required to

show that the claim is probable. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). But

“[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether

a complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 556 U.S. at 679. Documents filed pro se are to “to be liberally construed.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks

and citation omitted).

2 1. Barnes’s disparate-treatment claim fails.1 “[T]here is no disparate treatment

under the ADEA when the factor motivating the employer is some feature other than

the employee’s age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). Barnes

provides no facts to show that the hiring manager (or any other SSA employee)

discriminated against her because of her age. In fact, the hiring manager’s sworn

testimony (upon which Barnes relies for her ADEA and Title VII retaliation claims)

reveals that he declined to hire Barnes for reasons unrelated to her age: because he

dislikes judges (Barnes is a former judge for two Native American tribes) and

because her employment blog was a cause of “concern”—a “red flag” that she would

be a difficult employee. That the hiring manager ultimately offered one of the five

job openings to another applicant over the age of forty also undermines Barnes’s

disparate-treatment claim.

2. Barnes’s ADEA and Title VII retaliation claims fail because the activity

she alleges the SSA retaliated against—her employment blog covering harassment,

bullying, and discrimination—was not protected activity. To have a cause of action

1 The federal provision of the ADEA, 29 U.S.C. § 633a(a), requires that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” The Supreme Court recently held in Babb v. Wilkie, 140 S. Ct. 1168 (2020), that 29 U.S.C. § 633a(a) “demands that personnel actions be untainted by any consideration of age.” Babb, 140 S. Ct. at 1171 (emphasis added). Even under Babb, Barnes must still show that age discrimination was the but-for cause to obtain the damages she seeks. Ibid. Injunctive and “other forward-looking relief” may be granted under a less demanding standard. Id. at 1178. 3 for ADEA or Title VII retaliation, the plaintiff must show she engaged in protected

activity. See, e.g., O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763

(9th Cir. 1996); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir.

2002). “[T]he ADEA anti-retaliation provision is parallel to the anti-retaliation

provision contained in Title VII, and . . . cases interpreting the latter provision are

frequently relied upon in interpreting the former.” Hashimoto v. Dalton, 118 F.3d

671, 675 n.1 (9th Cir. 1997) (quotation marks and citation omitted). Under this

court’s precedent, activity is protected only if it opposes a specific employer’s

discriminatory practices. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013

(9th Cir. 1983) (“The employee’s statement cannot be ‘opposed to an unlawful

employment practice’ unless it refers to some practice by the employer that is

allegedly unlawful.’”) (internal quotation marks and emphasis omitted). Barnes’s

blog featured articles about age discrimination generally but not opposition to any

SSA discrimination against her or others. It therefore was not protected activity

under either the ADEA or Title VII.

3. Barnes does state a plausible disparate-impact claim. “Proof of

discriminatory motive . . . is not required under a disparate-impact theory.” Hazen

Paper, 507 U.S. at 609 (quoting Int’l Brotherhood of Teamsters v. United States,

431 U.S. 324, 335–36 n.15 (1977) (ellipses in original)). Disparate-impact age

discrimination occurs if an employer’s facially neutral employment practices

4 adversely affect older workers. Smith v. City of Jackson, 544 U.S. 228, 239 (2005).

The plaintiff is “responsible for isolating and identifying the specific employment

practices that are allegedly responsible for any observed statistical disparities.” Id.

at 241 (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989),

superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k)). Barnes states a

plausible disparate-impact claim by citing a specific employment practice: For no

reason that is stated or apparent from the record, the SSA limited public notice of

the job openings by notifying only the University of Nevada’s law school and the

local office of outgoing Peace Corps volunteers about the job openings.

Barnes alleges that these practices resulted in an applicant pool in which

twenty-five out of twenty-seven applicants—over ninety percent—were under the

age of forty. She alleges that the law school and Peace Corps have populations “with

an average age well below 40,” which the SSA does not dispute. Our experience and

common sense tell us that notifying only some populations about the posting but not

others could lead to an overrepresentation of the notified population in the applicant

pool. Thus, Barnes’s disparate-impact claim rises “above the speculative level” and

is plausible. Twombly, 550 U.S. at 555.

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.