                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 03 2012

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




                            FOR THE NINTH CIRCUIT



GUY GRIMSLEY,                                    No. 10-16704

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00680-ECR-VPC

  v.
                                                 MEMORANDUM *
CHARLES RIVER LABORATORIES,
INC., a Delaware Corporation,

              Defendant - Appellee.




                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                      Argued and Submitted January 19, 2012
                            San Francisco, California

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Guy Grimsley filed two actions against Charles River Laboratories in the

District of Nevada, numbered 3:08-cv-00482-LRH-VPC (“Grimsley I”) and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
3:09-cv-00680-ECR-VPC (“Grimsley II”), respectively. Grimsley appeals from

the district court’s dismissal of Grimsley II.1 We affirm.

      When the district court denied Grimsley leave to add his retaliation claim in

Grimsley I, Grimsley had options. He could have moved to stay Grimsley I pending

his exhaustion of the retaliation claim before the EEOC. Alternatively, he could

have litigated his discrimination claims to their conclusion, and then appealed the

district court’s denial of leave to this court. See Bouman v. Block, 940 F.2d 1211,

1228-29 (9th Cir. 1991) (plaintiff could add unexhausted retaliation claim in her

discrimination suit because the retaliation claim was “reasonably related” to the

discrimination action). But see Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 644-

46 (9th Cir. 2003) (unexhausted retaliation claim was not “reasonably related” to

discrimination claim because the allegedly retaliatory acts did not “fall under an

investigation that the EEOC would have conducted”).

      Grimsley’s options did not, however, include the right to bring his retaliation

claim in a new action. See Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688


       1
         While this appeal was pending, the district court dismissed Grimsley I, and
Grimsley filed another appeal, which this court numbered 12-15106. This
disposition addresses only Grimsley’s appeal from Grimsley II, not his appeal from
Grimsley I. We do, however, grant Charles River’s unopposed January 12, 2011
motion to take judicial notice of certain documents filed in Grimsley I, and take
judicial notice of other relevant Grimsley I documents on our own initiative. See
Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

                                           2
(9th Cir. 2007) (“‘[T]he fact that plaintiff was denied leave to amend does not give

h[er] the right to file a second lawsuit based on the same facts.’” (quoting Hartsel

Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 989 (10th Cir. 2002)

(second alteration in original))). As we explained in Adams, a district court may

dismiss an action as “duplicative” of an earlier action if “‘assuming that the first

suit were already final, the second suit could be precluded pursuant to claim

preclusion.’” Id. (quoting Hartsel, 296 F.3d at 987 n.1). Grimsley II could be

precluded pursuant to claim preclusion by Grimsley I because the two actions

involve identical parties and arise from the same cause of action. See id. at 688-89.

We hold that the district court did not abuse its discretion by dismissing Grimsley II

as duplicative of Grimsley I.

      In addition, Grimsley’s counterclaim theory in Grimsley II fails to state a

claim on which relief may be granted. To show retaliation under the ADEA or Title

VII, an employee must show “that (1) she was engaging in protected activity, (2)

the employer subjected her to an adverse employment decision, and (3) there was a

causal link between the protected activity and the employer’s action.” Bergene v.

Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1140-41 (9th

Cir. 2001); see also Poland v. Chertoff, 494 F.3d 1174, 1179-80 & n.1 (9th Cir.

2007) (the standard for retaliation under the ADEA is the same as the standard for


                                            3
retaliation under Title VII). Although “[t]he scope of [Title VII’s] antiretaliation

provision extends beyond workplace-related or employment-related retaliatory acts

and harm,” the provision “protects an individual not from all retaliation but from

retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 67 (2006). To prove a cognizable injury, “a plaintiff must show

that a reasonable employee would have found the challenged action materially

adverse, which in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Id. at 68 (internal

quotation marks removed).

      Grimsley suggests that counterclaims may be actionably retaliatory in “rare

cases,” such as when they have no basis in law and fact and were filed with

retaliatory motive. However, adopting this test would not aid Grimsley, because

Charles River’s counterclaims did have an arguable basis in law and fact. Grimsley

agreed to repay his relocation reimbursement if he was terminated within a year,

and Nevada law gave Charles River a basis for arguing that Grimsley could not use

extrinsic evidence to contradict the unambiguous meaning of this agreement. Kaldi

v. Farmers Ins. Exch., 21 P.3d 16, 22-23 (Nev. 2001). Nevada law also provided

some support for the theory that Grimsley’s return of allegedly converted property

did not nullify a conversion, but only mitigated damages. Evans v. Dean Witter


                                           4
Reynolds, Inc., 5 P.3d 1043, 1049 (Nev. 2000) (quoting and overruling on other

grounds Bader v. Cerri, 609 P.2d 314, 317 (Nev. 1980)). Indeed, the district court

in Grimsley I granted summary judgment to Charles River on its contract

counterclaim and held that its conversion counterclaim presented genuine issues of

material fact for trial. Charles River’s filing of the Grimsley I counterclaims did not

constitute a materially adverse employment action.

      AFFIRMED.




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