                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 20 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



YOUN YOON, an individual,                         No. 09-55776

              Plaintiff - Appellant,              D.C. No. 2:07-cv-05005-DDP-
                                                  AGR
  v.

KAISER FOUNDATION HOSPITAL,                       MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                            Submitted January 11, 2011 **

                                 Pasadena, California

Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.

       Plaintiff Appellant Youn Yoon appeals from summary judgment in favor of

Defendant Appellee Kaiser Foundation Hospital (“Kaiser”). Yoon appeals only

the district court’s decision on her retaliation claim. She appeals the district court’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision on her failure to investigate claim, but only insofar as Kaiser’s alleged

failure to investigate is evidence that Kaiser placed her on paid administrative

leave in retaliation for engaging in protected activity. On appeal, summary

judgment is reviewed de novo. Yellow Cab Co. of Sacramento v. Yellow Cab of

Elk Grove, Inc., 419 F.3d 925, 927 (9th Cir. 2005).

       1. Retaliation

       Under California Law, it is unlawful for any employer to retaliate against an

employee for opposing practices forbidden under California’s Fair Employment

and Housing Act. Cal. Gov. Code § 12940(h). To make out a prima facie case for

retaliation, a plaintiff must show the following: 1) she engaged in a protected

activity; 2) her employer subjected her to an adverse employment action after

engaging in such activity; and 3) there is a causal link between the two. Yanowitz

v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). Once an employee

establishes a prima facie case, the employer is required to offer a legitimate,

nonretaliatory reason for the adverse employment action. Id. If the employer

produces such a reason, the burden shifts back to the plaintiff to prove intentional

retaliation. Id.

       Here, we need not reach the question whether Yoon established a prima

facie case of discrimination. Assuming that she did, Kaiser clearly had a


                                           2
legitimate, nonretaliatory reason for placing Yoon on paid administrative leave.

Yoon’s May 22, 2004 letter suggested that she suffered from some form of mental

illness. Concerned about the letter, Kaiser ordered her to undergo a fitness for duty

evaluation. Examining psychiatrists determined that Yoon could no longer work

with infants. In her deposition, Yoon admitted that she would not feel comfortable

returning to work because she was scared of people and feared being attacked by

co-workers. Yoon also admitted that she was diagnosed with paranoia,

schizophrenia and auditory hallucinations. Nothing in the record could lead a

reasonable fact finder to conclude that Kaiser’s reasons for placing Yoon on paid

administrative leave were pretextual.

      2. Failure to Investigate

      California law makes it unlawful for an employer to “fail to take all

reasonable steps necessary to prevent discrimination and harassment from

occurring.” Cal. Gov. Code § 12940(k). Yoon contends that Kaiser failed to

investigate her claims of discrimination and harassment after she notified Kaiser in

her July 2002 “Unusual Occurrence Report” and her May 2004 letter.

      To make out a failure to investigate claim, plaintiffs must first establish a

prima facie case of discrimination. See Trujillo v. N. County Transit Dist., 63 Cal.

App. 4th 280, 288-9 (1998). Yoon does not challenge on appeal the district court’s


                                          3
determination that she failed to make out a prima facie case of discrimination.

Therefore, the issue is waived. See Greenwood v. F.A.A., 28 F.3d 971, 977 (1994)

(court only reviews “issues which are argued specifically and distinctly in a party’s

opening brief.”). Morever, Yoon has no evidence that Kaiser’s decision to place

her on administrative leave was based on race, religion, national origin, or on any

reason other than her unfitness to perform her duties as a maternity nurse.

      Yoon argues that Kaiser’s failure to investigate is circumstantial evidence

that she was placed on administrative leave in retaliation for her protected activity.

But Kaiser’s failure to investigate was almost two years before she was eventually

placed on administrative leave. The district court held that Kaiser’s failure to

investigate was too far removed from Yoon’s ultimate placement on paid

administrative leave to create a genuine dispute of material fact as to whether Yoon

was subjected to retaliation. We agree. See Fisher v. San Pedro Peninsula Hosp.,

214 Cal. App. 3d 590, 615 (1989) (retaliation must follow “within a relatively

short time” after protected activities).

      For the foregoing reasons, summary judgment is AFFIRMED.




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