                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 19 2010

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




                            FOR THE NINTH CIRCUIT



JAMES V. SWINNIE,                                No. 09-35515

              Plaintiff - Appellant,             D.C. No. 3:08-cv-05073-BHS

  v.
                                                 MEMORANDUM *
PETE GEREN,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                        Argued and Submitted May 6, 2010
                               Seattle, Washington

Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.**

       James V. Swinnie appeals the district court’s order dismissing in part and

granting summary judgment in part to Secretary of the Army Pete Geren on

Swinnie’s claims of unlawful discrimination under Title VII of the Civil Rights


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
Act of 1964 and the Rehabilitation Act. The parties are familiar with the factual

and procedural history of this case and we do not review that history in detail here.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse

and remand in part.

      We affirm the district court’s dismissal of Swinnie’s hostile work

environment claim under Title VII. Swinnie’s Equal Employment Opportunity

(EEO) complaint alleged discrete acts of discrimination but would not have put the

EEO investigator on notice of a pattern of conduct “sufficiently severe or

pervasive” so as to create an “abusive work environment.” See Manatt v. Bank of

Am., 339 F.3d 792, 798 (9th Cir. 2003). Because the hostile work environment

claim was not included in Swinnie’s administrative complaint, the district court

properly dismissed it as unexhausted. See B.K.B. v. Maui Police Dep’t., 276 F.3d

1091, 1100 (9th Cir. 2002).

      We also affirm the district court’s grant of summary judgment with respect

to Swinnie’s race discrimination claim under Title VII and his disability

discrimination claim under the Rehabilitation Act.1 Swinnie did not present a

prima facie case of race discrimination because the record shows that several



      1
       Swinnie does not pursue on appeal the gender discrimination claim that he
advanced in the district court.

                                          2
similarly situated individuals outside of his protected class received fewer hours

than Swinnie, while one African American co-worker was at or near the top in

hours during the relevant pay period. Swinnie does not present evidence that

“similarly situated” employees outside Swinnie’s protected class received better

hours. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir.

2006). The speculative statements by Robin Clark and Lonnie Bennett regarding

disfavored shift assignments do not establish a prima facie claim. As to Swinnie’s

disability discrimination claim under the Rehabilitation Act, the district court

correctly ruled that Swinnie did not show that his anxiety and depression impaired

a major life activity and thus constituted a disability within the meaning of the

Americans with Disabilities Act. Absent a showing of disability, Swinnie’s

Rehabilitation Act claim—which encompassed his exhausted disability

accommodation claim—was not valid. See Coons v. Sec’y of U.S. Dep’t of

Treasury, 383 F.3d 879, 884, 886 (9th Cir. 2004). The district court properly

granted summary judgment rejecting this claim.

      Our analysis with respect to Swinnie’s claims of retaliation in violation of

Title VII is different. Although we agree that undisputed evidence demonstrated

that Swinnie’s reassignment to the Main Post TMP and the failure to renew

Swinnie’s term appointment were based on his own doctors’ recommendations and


                                           3
were not retaliatory, by contrast Swinnie’s retaliation claim based on the

circulation of the two petitions should have survived summary judgment.

Following Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), we ask

whether an action was “materially adverse” because it “could well dissuade a

reasonable worker from making or supporting a charge of discrimination,” even if

it did not affect “the terms and conditions of employment.” Id. at 57. Swinnie

declared that he was offended and disparaged by the content of the petitions and

the fact that they were circulated to many of his co-workers. At least one petition

was drafted by Beth Mosher, the person responsible for scheduling his hours and

assignments and therefore arguably in a supervisory role as Swinnie alleged in his

Complaint and subsequent Opposition to Summary Judgment. See Faragher v.

City of Boca Raton, 524 U.S. 775, 790 (1998) (holding that actions that have

“tangible results,” such as a change in “work assignments,” “have resulted in

employer liability once discrimination was shown”). Swinnie additionally alleged

that Mosher’s supervisors knew of the petitions and tolerated them by not

disciplining Mosher for their circulation. Finally, our precedent makes clear that

materially adverse co-worker retaliation, like supervisor retaliation, is actionable

under Title VII. See, e.g., Fielder v. UAL Corp., 218 F.3d 973, 984–85 (9th Cir.

2000), vacated on other grounds, 536 U.S. 919 (2002). Swinnie claimed the


                                           4
petitions sent a “clear message” that anyone who submitted an EEO complaint

would face disparaging allegations about his or her character, and these allegations

give rise to a genuine issue of material fact as to whether Swinnie suffered

retaliation based on the circulation of the two petitions. Because there is a genuine

issue of material fact as to whether the petitions would have dissuaded a reasonable

person from engaging in protected activity, and as to whether Mosher was a

supervisor of Swinnie or alternatively whether management tolerated her actions,

the retaliation claim based on the two petitions should have gone to the jury. We

reverse the district court’s grant of summary judgment on that ground.

      On remand, the district court must also consider, in the first instance, the

following claims raised and exhausted by Swinnie, but not addressed by the district

court: (1) Mosher’s opposition to Swinnie’s worker’s compensation claim as

retaliation for Swinnie’s EEO complaint; (2) Carlo Sallinger’s interference with

Swinnie’s return to work as retaliation for the EEO complaint; and (3) Sallinger’s

attempt to obtain false statements about Swinnie from Timothy Jones, Swinnie’s

supervisor at the Main Post TMP, as retaliation for the EEO complaint.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, REVERSED, AND REMANDED IN PART.




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