NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELIZABETH SPOKOINY, No. 24-550 D.C. No. Plaintiff - Appellant, 2:22-cv-00536-JLR v. MEMORANDUM* UNIVERSITY OF WASHINGTON MEDICAL CENTER,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted February 13, 2025 Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and BENNETT, District Judge.**
Elizabeth Spokoiny appeals the district court’s order granting summary
judgment for her former employer, University of Washington Medical Center
(“UWMC”). “A grant of summary judgment is appropriate when there is no
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir.
2017). A fact is “material” if it has the potential to affect the outcome of a case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Spokoiny contends
that a genuine issue of material fact exists as to each of the claims for which the
district court granted summary judgment. We have jurisdiction under 28 U.S.C. §
1291. Having reviewed the briefs, record, and supplemental letters, we affirm.
Because the parties are familiar with the facts and procedural history of the case,
we recite only facts necessary to decide this appeal.
1. Title VII sexual harassment: To prevail on a sexual harassment
claim under Title VII, a plaintiff must demonstrate that the plaintiff was subjected
to a hostile work environment and that the employer was liable for the harassment.
Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021). An employer is
liable for the harassment when the harassment constitutes the employer’s own acts
or when the employer fails to take “immediate and corrective action” in response
to known harassment. Id. The district court dismissed Spokoiny’s sexual
harassment claim because, although Spokoiny produced evidence of sexual
harassment, she did not demonstrate that UWMC knew of that harassment and
failed to act. The record shows that the alleged sexual harasser resigned the day
after the harassment was reported to UWMC. On appeal, Spokoiny did not
2 24-550 identify any record evidence contrary to the district court’s finding. See Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929 (2003).
2. Disparate treatment under Title VII and the Americans with
Disabilities Act (ADA): Disparate treatment claims under Title VII and the ADA
are both governed by the McDonnell Douglas burden-shifting framework and
require the same elements for a prima facie case: “(1) [the plaintiff] belongs to a
protected class; (2) she was qualified for her position; (3) she was subject to an
adverse employment action; and (4) similarly situated individuals outside her
protected class were treated more favorably.” Davis v. Team Elec. Co., 520 F.3d
1080, 1089 (9th Cir. 2008). “[A]n adverse employment action is one that
‘materially affects the compensation, terms, conditions, or privileges of
employment.’ ” Campbell v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1012 (9th
Cir. 2018) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.
2008)). The district court granted summary judgment for UWMC on Spokoiny’s
disparate treatment claims because Spokoiny did not identify an adverse
employment action. Although Spokoiny contends that her low performance
review from January 2020 was an adverse employment action, she did not identify
or explain how that review changed any aspect of her employment. A low
performance review standing alone, without impact on the compensation, terms,
conditions, or privileges of employment does not amount to an adverse
3 24-550 employment action.
3. Retaliation claims: To establish a prima facie claim of retaliation,
Spokoiny must demonstrate (1) that she engaged in protected conduct; (2) that she
suffered an adverse employment action; and (3) that there is a causal link between
the protected expression and the adverse action. See E.E.O.C. v. Dinuba Medical
Clinic, 222 F.3d 580, 586 (9th Cir. 2000) (applying retaliation framework in Title
VII context). Under the McDonnell Douglas framework, the burden then shifts to
the employer to proffer a legitimate, non-discriminatory reason for the adverse
action. See Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.
2002). If the employer can do so, then the plaintiff must offer evidence that the
proffered reason is pretext for discrimination. See Vasquez v. County of Los
Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
Assuming that Spokoiny demonstrated a prima facie case of retaliation,
UWMC proffered a legitimate, non-discriminatory reason for the adverse action:
Spokoiny had performance problems, such as with recordkeeping and tardiness.
UWMC supported that contention with record evidence. The burden shifted back
to Spokoiny to demonstrate that UWMC’s proffered reason was pretext. See
Vasquez, 349 F.3d at 641. Spokoiny did not explain how or why UWMC’s
proffered reason was pretextual, nor did she identify any evidence so showing. See
Washington, 350 F.3d at 929 (“Our circuit has repeatedly admonished that we
4 24-550 cannot manufacture arguments for an appellant.” (simplified)).
4. Failure to accommodate claims under the ADA: To prevail on a
case for failure to accommodate under the ADA, a plaintiff must show that (1) she
is disabled; (2) she is qualified for the relevant job and capable of performing it
with reasonable accommodation; (3) the employer had notice of the plaintiff’s
disability; and (4) the employer failed to reasonably accommodate the plaintiff’s
disability. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237
(9th Cir. 2012). Although Spokoiny claimed that UWMC failed to accommodate
her disability, she did not explain what accommodation was delayed or denied.
The denial of a reasonable accommodation is an essential element of her claim for
failure to accommodate.
5. Family and Medical Leave Act (FMLA) interference: To establish
a prima facie case of FMLA interference, a plaintiff must establish that (1) she
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELIZABETH SPOKOINY, No. 24-550 D.C. No. Plaintiff - Appellant, 2:22-cv-00536-JLR v. MEMORANDUM* UNIVERSITY OF WASHINGTON MEDICAL CENTER,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted February 13, 2025 Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and BENNETT, District Judge.**
Elizabeth Spokoiny appeals the district court’s order granting summary
judgment for her former employer, University of Washington Medical Center
(“UWMC”). “A grant of summary judgment is appropriate when there is no
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir.
2017). A fact is “material” if it has the potential to affect the outcome of a case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Spokoiny contends
that a genuine issue of material fact exists as to each of the claims for which the
district court granted summary judgment. We have jurisdiction under 28 U.S.C. §
1291. Having reviewed the briefs, record, and supplemental letters, we affirm.
Because the parties are familiar with the facts and procedural history of the case,
we recite only facts necessary to decide this appeal.
1. Title VII sexual harassment: To prevail on a sexual harassment
claim under Title VII, a plaintiff must demonstrate that the plaintiff was subjected
to a hostile work environment and that the employer was liable for the harassment.
Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021). An employer is
liable for the harassment when the harassment constitutes the employer’s own acts
or when the employer fails to take “immediate and corrective action” in response
to known harassment. Id. The district court dismissed Spokoiny’s sexual
harassment claim because, although Spokoiny produced evidence of sexual
harassment, she did not demonstrate that UWMC knew of that harassment and
failed to act. The record shows that the alleged sexual harasser resigned the day
after the harassment was reported to UWMC. On appeal, Spokoiny did not
2 24-550 identify any record evidence contrary to the district court’s finding. See Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929 (2003).
2. Disparate treatment under Title VII and the Americans with
Disabilities Act (ADA): Disparate treatment claims under Title VII and the ADA
are both governed by the McDonnell Douglas burden-shifting framework and
require the same elements for a prima facie case: “(1) [the plaintiff] belongs to a
protected class; (2) she was qualified for her position; (3) she was subject to an
adverse employment action; and (4) similarly situated individuals outside her
protected class were treated more favorably.” Davis v. Team Elec. Co., 520 F.3d
1080, 1089 (9th Cir. 2008). “[A]n adverse employment action is one that
‘materially affects the compensation, terms, conditions, or privileges of
employment.’ ” Campbell v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1012 (9th
Cir. 2018) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.
2008)). The district court granted summary judgment for UWMC on Spokoiny’s
disparate treatment claims because Spokoiny did not identify an adverse
employment action. Although Spokoiny contends that her low performance
review from January 2020 was an adverse employment action, she did not identify
or explain how that review changed any aspect of her employment. A low
performance review standing alone, without impact on the compensation, terms,
conditions, or privileges of employment does not amount to an adverse
3 24-550 employment action.
3. Retaliation claims: To establish a prima facie claim of retaliation,
Spokoiny must demonstrate (1) that she engaged in protected conduct; (2) that she
suffered an adverse employment action; and (3) that there is a causal link between
the protected expression and the adverse action. See E.E.O.C. v. Dinuba Medical
Clinic, 222 F.3d 580, 586 (9th Cir. 2000) (applying retaliation framework in Title
VII context). Under the McDonnell Douglas framework, the burden then shifts to
the employer to proffer a legitimate, non-discriminatory reason for the adverse
action. See Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.
2002). If the employer can do so, then the plaintiff must offer evidence that the
proffered reason is pretext for discrimination. See Vasquez v. County of Los
Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
Assuming that Spokoiny demonstrated a prima facie case of retaliation,
UWMC proffered a legitimate, non-discriminatory reason for the adverse action:
Spokoiny had performance problems, such as with recordkeeping and tardiness.
UWMC supported that contention with record evidence. The burden shifted back
to Spokoiny to demonstrate that UWMC’s proffered reason was pretext. See
Vasquez, 349 F.3d at 641. Spokoiny did not explain how or why UWMC’s
proffered reason was pretextual, nor did she identify any evidence so showing. See
Washington, 350 F.3d at 929 (“Our circuit has repeatedly admonished that we
4 24-550 cannot manufacture arguments for an appellant.” (simplified)).
4. Failure to accommodate claims under the ADA: To prevail on a
case for failure to accommodate under the ADA, a plaintiff must show that (1) she
is disabled; (2) she is qualified for the relevant job and capable of performing it
with reasonable accommodation; (3) the employer had notice of the plaintiff’s
disability; and (4) the employer failed to reasonably accommodate the plaintiff’s
disability. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237
(9th Cir. 2012). Although Spokoiny claimed that UWMC failed to accommodate
her disability, she did not explain what accommodation was delayed or denied.
The denial of a reasonable accommodation is an essential element of her claim for
failure to accommodate.
5. Family and Medical Leave Act (FMLA) interference: To establish
a prima facie case of FMLA interference, a plaintiff must establish that (1) she
was eligible for FMLA protections; (2) her employer was covered by FMLA;
(3) she was entitled to FMLA leave; (4) she provided sufficient notice of her
intent to take leave; and (5) the employer denied her FMLA benefits to which she
was entitled. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir.
2004). The district court dismissed Spokoiny’s claim because “Spokoiny fail[ed]
to direct the court toward any specific instances of UWMC denying a request for
FMLA leave.” Although Spokoiny claims that she provided “over 20” instances
5 24-550 of FMLA leave interference, none of Spokoiny’s record citations show the denial
of FMLA leave. Instead, her record citations demonstrate instances in which
UWMC clarified its FMLA policies. Because an employer is permitted to have
policies around the implementation of FMLA leave, see Shelton v. Boeing Co.,
702 Fed.App’x. 567 (9th Cir. 2017) (citing Bones v. Honeywell Int'l, Inc., 366 17
F.3d 869, 878 (10th Cir. 2004)); 29 C.F.R. § 825.303, UWMC’s clarifications
were not facial interference with FMLA leave.
6. Unpaid wages: Under Washington state law, an employee can seek
lost wages if “the nonpayment of wages is conducted ‘willfully and with intent to
deprive the employee of any part of [her] wages.’ ” Brinson v. Linda Rose Joint
Venture, 53 F.3d 1044, 1050 (9th Cir. 1995) (quoting RCW 49.52.050(2)).
Spokoiny contended that UMWC failed to pay her for missed meal breaks and
failed to fairly compensate her for work as a preceptor. The district court
dismissed her claim because she did not point to any evidence that UMWC’s
failure to pay was “willful.” Spokoiny now contends that UMWC’s actions were
“willful” because she put UMWC on notice in a January 9, 2020 email about
unpaid breaks and preceptor work. But Spokoiny admitted that she regularly failed
to record her missed breaks or work as a preceptor. UMWC’s refusal to pay the
additional wages was therefore neither “willful” nor a “result of knowing and
intentional action by the employer, rather than of a bona fide dispute as to the
6 24-550 obligation of payment.” See Brinson, 53 F.3d at 1049–50. “Dismissal of such
claims on summary judgment is permitted.” Id.
7. Violation of the Washington Public Record Act: Spokoiny
contends that UWMC violated the Washington Public Record Act by taking too
long to produce requested records during discovery. The district court held that
Spokoiny’s claim fails because, in analyzing whether UMWC properly responded
to a document request, the court looks at “[w]hether the agency responded with
reasonable thoroughness and diligence.” Freedom Found v. Dep’t of Soc. &
Health Servs., 9 Wn. App. 2d 654 (Wash. Ct. App. 2019). Here, UMWC “timely
acknowledged” Spokoiny’s document requests and produced documents on a
rolling basis. Although some record productions were slow, Spokoiny had made
her document requests in the middle of the COVID-19 pandemic, when UWMC
already had a backlog of records requests. Under the circumstances, this delay
was not unreasonable. See Conklin v. Univ. of Wash. Sch. of Med., 2023 Wash.
App. LEXIS 7* (Wash. Ct. App. 2023).
AFFIRMED.
7 24-550