                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                           JUL 01 2015

                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

THERESA GARNER,                                  No. 14-15422

               Plaintiff - Appellant,            D.C. No. 2:12-cv-01330-SRB

 v.
                                                 MEMORANDUM*
PENNY PRITZKER, Secretary, United
States Department of Commerce,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                              Submitted June 22, 2015**

Before:        HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

      Theresa Garner appeals pro se from the district court’s summary judgment in

her employment action alleging retaliation and hostile work environment claims

under Title VII. We have jurisdiction under 28 U.S.C. § 1291. We review de


          *
             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).
novo, Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010), and we

affirm.

      The district court properly granted summary judgment on Garner’s

retaliation claim because Garner failed to raise a genuine dispute of material fact

as to whether defendant took any adverse employment action against Garner for

engaging in conduct protected by Title VII. See McGinest v. GTE Serv. Corp., 360

F.3d 1103, 1124 (9th Cir. 2004) (to establish a prima facie case for retaliation

under Title VII, a plaintiff must show that: (1) she engaged in conduct protected by

Title VII; 2) that an adverse employment action was taken against her; and 3) that a

causal link existed between the two events).

      The district court properly granted summary judgment on Garner’s hostile

work environment claim because Garner failed to raise a genuine dispute of

material fact as to whether she was subjected to sufficiently severe or pervasive

conduct. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003)

(setting forth elements of a prima facie case for hostile work environment under

Title VII and explaining that courts look at “all the circumstances, including the

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance” in determining


                                          2                                       14-15422
whether conduct violates Title VII); see also McGinest, 360 F.3d at 1113 (“Simply

causing an employee offense based on an isolated comment is not sufficient to

create actionable harassment under Title VII.”).

      The district court properly concluded that defendant did not waive any

arguments raised in the motion for summary judgment because Garner had “fair

notice” of these defenses in the Answer. See Simmons v. Navajo County, Ariz.,

609 F.3d 1011, 1023 (9th Cir. 2010) (“The key to determining the sufficiency of

pleading an affirmative defense is whether it gives plaintiff fair notice of the

defense.” (citation and internal quotation marks omitted)). Garner’s arguments

regarding defendant’s waiver of issues on appeal under Fed. R. Civ. P. 12(h) are

unsupported.

      We do not consider issues or arguments not specifically and distinctly raised

and argued in the opening brief, or raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Garner’s requests, set forth in her notices filed on August 15, 2014 and

September 24, 2014, are denied.

      AFFIRMED.




                                           3                                       14-15422
