                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 09 2017
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


NEIMAN FAHNESTOCK,                               No.   14-56539

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-06759-BRO-JEM
 v.

MATTHEW WAGGONER, an                             MEMORANDUM*
individual; PAYCHEX NORTH
AMERICA, INC., erroneously named in
the First Amended Complaint as
Paychex, Inc.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                      Argued and Submitted August 29, 2016
                              Pasadena, California

Before:      KOZINSKI and BYBEE, Circuit Judges, and WALTER,** District
             Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
                                                                                  page 2
      1. Fahnestock is time-barred by the Fair Employment and Housing Act’s

one-year statute of limitations from relying on conduct that occurred prior to

August 7, 2012, unless the conduct constituted a continuing violation. Cal. Gov’t

Code § 12960(d). In order to show a continuing violation, Fahnestock must

establish that the allegedly unlawful conduct occurring outside the limitations

period (1) was “sufficiently similar in kind” to the alleged conduct within the

limitations period; (2) “occurred with reasonable frequency”; and (3) has “not

acquired a degree of permanence.” Richards v. CH2M Hill, Inc., 29 P.3d 175, 190

(Cal. 2001).

      Karen Toomey’s decision to terminate Fahnestock and Nick Carr’s decision

not to rehire her, months after Waggoner left Paychex, are not similar in kind to the

pre-limitations-period actions attributed to Waggoner. That Toomey and Carr may

have taken Fahnestock’s personnel file into account and thereby given present

effect to Waggoner’s pre-limitations-period actions is insufficient to make

Waggoner’s otherwise unrelated actions similar in kind to Toomey and Carr’s

decisions. Cf. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (“[T]he

emphasis should not be placed on mere continuity; the critical question is whether

any present violation exists.”).
                                                                                page 3
      Waggoner’s pre-limitations-period conduct may have been frequent enough

and sufficiently similar to Waggoner’s conduct within the limitations period, but

the situation reached a degree of permanence long before August 7, 2012. As early

as April 2010, Fahnestock was allegedly pressured to take the CFR position. See

Cucuzza v. City of Santa Clara, 128 Cal. Rptr. 2d 660, 668 (Ct. App. 2002)

(holding that a state of permanence was reached when the City’s only response to

plaintiff’s complaint about the loss of job duties was to give her the opportunity to

transfer out of the department). And, by June 2010, when Fahnestock complained

to HR about her territory reassignments to no avail, she was “on notice that further

efforts to end the unlawful conduct w[ould] be in vain.” Id. (citation omitted). For

these reasons, Fahnestock may not base her discrimination and retaliation claims

on Waggoner’s pre-limitations-period actions.

      The continuing violation doctrine, however, applies to Waggoner’s

harassment claim. Fahnestock alleges that Waggoner’s weekly harassment began

before the limitations period and continued until he resigned four months after the

limitations period began running. Because there is no evidence that the harassment

reached a state of permanence before the limitations period, we consider

Waggoner’s pre-limitations-period actions to determine liability on her harassment

claim. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)
                                                                                page 4
(applying the continuing violation doctrine to hostile work environment claim

differently than to discrimination and retaliation claims involving discrete acts);

Richards, 29 P.3d at 184–85 (recognizing that harassment often lacks the

permanence that discriminatory actions have).


      2. Fahnestock has proffered insufficient evidence of discriminatory motive

to survive summary judgment on her discrimination claim. The only evidence of

discriminatory motive relates to Waggoner, but Waggoner left months before

Fahnestock was terminated. Nor is there any evidence that Toomey was “simply

carr[ying] out the will of” Waggoner when terminating Fahnestock. Reeves v.

Safeway Stores, Inc., 16 Cal. Rptr. 3d 717, 732 n.14 (Ct. App. 2004). In fact, it is

undisputed that Toomey terminated Fahnestock, along with two men, because she

decided to eliminate the CFR position.

      Fahnestock contends that a reasonable jury could infer Waggoner’s

discriminatory intent based on his treatment of Fahnestock and her male

colleagues. But, other than Fahnestock’s own speculation, there is no evidence

that Waggoner’s condescending and discouraging attitude toward her was

motivated by her sex rather than by her poor performance.
                                                                                 page 5
      Fahnestock’s reliance on Iris Cuadra and Sara Wilkening’s testimony is

equally unavailing. According to Cuadra and Wilkening, Waggoner assigned the

territories and various types of sales credit in a discriminatory fashion. But such

episodic and conclusory evidence, without more, falls short of establishing a

“discriminatory pattern [that] is probative of motive.” Diaz v. Am. Tel. & Tel.,

752 F.2d 1356, 1363 (9th Cir. 1985). Cuadra’s testimony that Waggoner

frequently made lewd and sexist comments at women is also insufficient without

any evidence that these comments were connected to employment decisionmaking.

See Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (stating that a

comment “uttered in an ambivalent manner” and not tied to the adverse

employment action was insufficient to establish discriminatory animus); Harris v.

City of Santa Monica, 294 P.3d 49, 65 (Cal. 2013) (“[S]ection 12940(a) does not

purport to outlaw discriminatory thoughts, beliefs, or stray remarks that are

unconnected to employment decisionmaking.”).


      3. We also affirm the district court’s grant of summary judgment to

Waggoner and Paychex on Fahnestock’s retaliation claim. In her complaint to

Waggoner, Fahnestock compared herself only to “other reps with similar seniority

levels.” This didn’t sufficiently convey her concern that Waggoner was
                                                                               page 6
discriminating against her because of her sex. See Yanowitz v. L’Oreal USA, Inc.,

116 P.3d 1123, 1134 (Cal. 2005). While Fahnestock did express her concerns

about sex-based discrimination to HR and John Hickman, there is no evidence that

the decision-makers behind the allegedly adverse employment actions even knew

about these complaints, let alone decided to retaliate because of them. See id. at

1130 (holding that a prima facie case of retaliation requires a “causal link” between

the employee’s protected activity and the employer’s adverse employment action).


      4. Fahnestock’s harassment claim also doesn’t survive summary judgment.

The allegedly harassing conduct consisted of, among other things, casual winks,

condescending comments, eye rolls and the use of an unflattering picture. All

these allegations, even when taken together, do not establish conduct that was

“severe enough or sufficiently pervasive to alter the conditions of employment and

create a work environment that qualifies as hostile or abusive to employees

because of their sex.” Lyle v. Warner Bros. Television Prod., 132 P.3d 211, 220

(Cal. 2006) (citations omitted).


      5. Because Fahnestock’s claims of discrimination, retaliation and

harassment fail, her derivative claim that Paychex failed to prevent Waggoner’s

discrimination, retaliation and harassment against her also fails.
                                                                                 page 7
      6. Because the excluded statements are too speculative and conclusory to

raise a genuine issue of material fact, Fahnestock has failed to establish that the

district court’s evidentiary rulings, even if erroneous, were prejudicial. See Ambat

v. City & Cty. of San Francisco, 757 F.3d 1017, 1032 (9th Cir. 2014).


      AFFIRMED.
