                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 25 2010

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




                            FOR THE NINTH CIRCUIT



 ARDEANA Q. ELLIS,                               Nos. 08-35657
                                                      09-35208
              Plaintiff - Appellant,
                                                 D.C. Nos. 3:07-cv-05302-RJB
   v.                                                      3:08-cv-05691-BHS

 SMITHKLINE BEECHAM                              MEMORANDUM *
 CORPORATION d/b/a
 GLAXOSMITHKLINE,

              Defendant - Appellee.



                    Appeals from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding
                    Benjamin H. Settle, District Judge, Presiding

                                                         **
                            Submitted January 11, 2010




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes that these case are suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

GT/Research
Before:       BEEZER, TROTT, and BYBEE, Circuit Judges.

       Ardeana Q. Ellis appeals pro se from two related judgments in her actions

against her former employer. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review summary judgment de novo, and may affirm on any ground supported

by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009).

We affirm.

       Summary judgment was proper in Ellis’s first action, appeal No. 08-35657,

because she failed to raise a triable issue of race, gender, or age discrimination as

to either of the claims she raises on appeal.

       Specifically, summary judgment was proper on the Title VII retaliation

claim because Ellis did not oppose conduct that was prohibited by Title VII. See

Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (“[T]he opposed

conduct must fairly fall within the protection of Title VII to sustain a claim of

unlawful retaliation.”).

       Summary judgment was also proper on the “grant writing” disparate

treatment claim because Ellis failed to raise a triable issue as to whether her

computer problems were the result of defendant’s discriminatory animus. See

Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 664 (9th Cir. 2002)

(affirming summary judgment for employer in discrimination action where


GT/Research                                2                                      08-35657
plaintiff failed to “present[ ] the substantial and specific evidence required to

demonstrate . . . racial discrimination”); see also Cornwell v. Electra Cent. Credit

Union, 439 F.3d 1018, 1028-29 & n.6 (explaining the burden-shifting scheme of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and noting that a

plaintiff cannot create a genuine issue of material fact by “relying solely on the

plaintiff’s subjective belief”).

       Dismissal of Ellis’s second action, appeal No. 09-35208, pursuant to the

doctrine of res judicata was proper because the earlier action between the parties

resulted in a final judgment on the merits concerning claims arising out of the

employment relationship. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985,

987 (9th Cir. 2005) (“Res judicata applies when the earlier suit . . . (1) involved the

same claim or cause of action as the later suit, (2) reached a final judgment on the

merits, and (3) involved identical parties or privies.”) (citation and quotation marks

omitted).

       Further, having introduced the issue of wrongful termination in the first

action, Ellis neither sought a stay to pursue her administrative remedies, nor

included a wrongful termination claim in her second amended complaint. See

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714-15 (9th Cir. 2001)

(“Title VII claims are not exempt from the doctrine of res judicata where plaintiffs


GT/Research                                3                                        08-35657
have neither sought a stay from the district court for the purpose of pursuing Title

VII administrative remedies nor attempted to amend their complaint to include

their Title VII claims.”).

       Ellis’s remaining contentions are unpersuasive.

       No. 08-35657:         AFFIRMED

       No. 09-35208:         AFFIRMED.




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