                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2013

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




                            FOR THE NINTH CIRCUIT



MARGARET WILDER, in her capacity as              No. 11-16503
Personal Representative of the Estate of
Theresa Cameron,                                 D.C. No. 2:08-cv-01490-ROS

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

ARIZONA BOARD OF REGENTS, a
public entity; MICHAEL CROW, in his
official and individual capacity;
WELLINGTON REITER, in his individual
capacity; KENNETH BROOKS, in his
official and individual capacity;
HEMALATA DANDEKAR, in her
individual capacity; JOHN AND JANE
DOES, I-X, in their official and individual
capacities,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Roslyn O. Silver, Chief District Judge, Presiding

                     Argued and Submitted February 14, 2013
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and M. SMITH, Circuit Judges, and CARR, District
Judge.**

      Plaintiff-Appellant Margaret Wilder, in her capacity as Personal

Representative of the Estate of Theresa Cameron (Cameron), appeals the district

court’s grant of summary judgment and judgment as a matter of law in favor of

Defendants-Appellees on Cameron’s claims of race discrimination under Title VII

of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and 42

U.S.C. § 1983, gender discrimination under Title VII, retaliation under Title VII,

42 U.S.C. § 2000e-3, and violation of her constitutional right of due process under

the Fourteenth Amendment. We review de novo the district court’s grant of

summary judgment and judgment as a matter of law, Moore v. Local Union 569 of

the IBEW, 989 F.2d 1534, 1537 (9th Cir. 1993), and we affirm.

      The district court lacked subject matter jurisdiction over Cameron’s Title

VII gender discrimination claim because Cameron included no allegation of gender

discrimination in her administrative charge before the Equal Employment

Opportunity Commission (EEOC). See Lowe v. City of Monrovia, 775 F.2d 998,

1003–04 (9th Cir. 1985).




       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.

                                          2
      The district court did not err in finding that Cameron failed to make out a

prima facie claim of retaliation because Cameron failed to produce evidence

supporting a causal link between her complaints and Defendants’ actions. Manatt

v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003).

      Applying the burden-shifting framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), we find that Cameron failed to present

sufficient evidence that Defendants’ decision to terminate her was a pretext for

racial discrimination. Cameron failed to show that the two Caucasian employees

treated more favorably than her were similarly situated, where those employees

had not “engage[d] in problematic conduct of comparable seriousness.” Vasquez v.

Cnty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003). Cameron also failed to

demonstrate pretext by showing that President Michael Crow put forth inconsistent

explanations for her termination, because Cameron’s poor classroom performance

was noted throughout the termination process, in conjunction with her plagiarism.

      Finally, the district court did not err in granting summary judgment on

Cameron’s due process claim. Cameron asserts that she was dismissed based on

poor classroom performance, but that this reason was not explained in the Notice

of Dismissal and as a result, she was not given the opportunity to defend against it

in the agency hearing or in state court. The district court determined that


                                          3
Cameron’s due process claims were barred by res judicata because those claims

were, or could have been, raised by Cameron in the state trial court proceedings.

      “Under the doctrine of res judicata, a final judgment, entered on the merits in

a prior suit involving the same parties or their privies, bars a second suit on the

same cause of action and is conclusive as to facts which actually were or could

have been decided.” Hall v. Lalli, 952 P.2d 748, 750 (Ariz. 1997). It appears that

Cameron’s due process claim could have been raised prior to the conclusion of the

state trial court proceedings on March 1, 2010, and the district court was correct in

dismissing her claim on the basis of res judicata.

      Even if the district court erred in finding that Cameron’s due process claim

could have been raised in the state trial court, her claim fails on the merits. As

discussed supra, Cameron’s poor classroom performance was discussed

throughout the termination process, including in the Notice of Dismissal, in

conjunction with her plagiarism.

      AFFIRMED.




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