Powell v. Noem

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 3, 2025
• Docket: 24-3181
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 3 2025 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

PHOEBE POWELL, an individual, No. 24-3181

D.C. No. Plaintiff - Appellant, 2:22-cv-02444-MWF-RAO v. MEMORANDUM* KRISTI NOEM, Secretary, United States Department of Homeland Security, a government entity,

Defendant - Appellee. *

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted September 18, 2025** Pasadena, California

Before: TASHIMA, BYBEE, and IKUTA, Circuit Judges.

Phoebe Powell timely appeals from the summary judgment entered in favor

of Kristi Noem, Secretary of the U.S. Department of Homeland Security, in her

official capacity, in this action brought under Title VII. Reviewing de novo,

Animal Legal Def. Fund v. FDA, 836 F.3d 987, 988–89 (9th Cir. 2016) (en banc)

(per curiam), we affirm.

The three-step, burden-shifting framework established in McDonnell * 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). Douglas Corporation v. Green, 411 U.S. 792 (1973), applies to Powell’s claims for

retaliation. See Kama v. Mayorkas, 107 F.4th 1054, 1058–59 (9th Cir. 2024). At

the third step, the record does not raise a genuine issue of material fact regarding

the Secretary’s motive. Id. at 1059. Powell’s temporal proximity evidence, which

shows that the TSA issued a notice of proposed termination less than a month after

she filed a Equal Employment Opportunity complaint, is not enough by itself to

establish pretext in this case. Id. at 1061. The probative value of that evidence is

diminished because Powell reported her misconduct and was subsequently placed

on indefinite suspension pending investigation long before her protected activity.

Furthermore, the investigation uncovered evidence of a second petty theft by

Powell, which had occurred decades earlier, before Powell engaged in protected

activity. See Curley v. City of N. Las Vegas, 772 F.3d 629, 634 (9th Cir. 2014)

(“[T]he new information revealed by the City’s investigation defeats any causal

inference that might otherwise follow from the temporal proximity between his

protected activity and his termination.”).

Powell’s remaining arguments also fail to create a genuine issue of material

fact. She presented no evidence that indicated the TSA’s decisionmakers did not

believe their proffered reasons. Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1063 (9th Cir. 2002). Despite Powell’s assertions to the contrary, the TSA’s

justification did not shift over time, and its disciplinary protocols were applied

2 fairly and consistently. Minor shifts in the evidence on which the TSA relied or

imperfections in its investigation are immaterial given that the TSA consistently

stated that it terminated Powell because of the petty theft. See id. Powell’s attempt

to show that similarly situated employees were treated differently fails because her

comparators had different disciplinary infractions. See Vasquez v. Cnty. of Los

Angeles, 349 F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004). In light of

the “abundant and uncontroverted independent evidence” supporting the TSA’s

stated motive, Kama, 107 F.4th at 1059, and Powell’s inability to produce “specific

and substantial” evidence of pretext, Villiarimo, 281 F.3d at 1062, she failed to

give rise to a genuine dispute of material fact. Therefore, the district court did not

err in granting summary judgment for the Secretary.

AFFIRMED.