                                                                              FILED
                           NOT FOR PUBLICATION                                JUN 11 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


KYUNG M. CHOI, an individual,                   No. 12-56040

             Plaintiff - Appellant,             D.C. No. 2:09-cv-03792-GHK-
                                                PLA
       v.

RAY MABUS, Secretary of the United              MEMORANDUM*
States Department of Navy, a United
States government officer,

             Defendant - Appellee.

                  Appeal from the United States District Court
                      for the Central District of California
                 George H. King, Chief District Judge, Presiding

                             Submitted June 2, 2015**
                               Pasadena, California

Before: FERNANDEZ, FISHER and BEA, Circuit Judges.

      Kyung Choi appeals the district court’s summary judgment for the

government on her claims that she was discriminated against on the basis of race

and gender, and subjected to a hostile work environment, during her postdoctoral

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
fellowship at the Naval Air Warfare Center, Weapons Division (NAWCWD)

between May 2007 and May 2008. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. The district court properly concluded there is no triable issue as to

whether Choi was deterred from formally applying for a full-time position at

NAWCWD due to discriminatory practices. See Breiner v. Nev. Dep’t of Corrs.,

610 F.3d 1202, 1208 (9th Cir. 2010). The government provided evidence showing

Choi’s supervisors at NAWCWD decided not to consider her for a full-time

position because they received complaints about her lack of compliance with lab

safety guidelines, and were unsatisfied with her ability to publicly present her

work. Choi does not provide sufficient evidence to create a triable issue as to

whether those reasons were pretextual. See McDonnell Douglas v. Green, 411

U.S. 792, 804 (1973).

      2. The district court properly concluded there is no triable issue as to

whether Choi was subjected to a hostile work environment. Choi’s claim is based

primarily on several inappropriate comments allegedly made by a co-worker, Dr.

Zach Sechrist. In the district court, Choi did not cite any evidence in her

opposition to the motion for summary judgment to show NAWCWD knew or

should have known about those comments. See Burlington Industries, Inc. v.


                                          2
Ellerth, 524 U.S. 742, 768 (1998) (“If . . . the employee alleges a . . . hostile work

environment, the employer is liable only for negligence: that is, only if the

employer knew, or in the exercise of reasonable care should have known, about the

harassment and failed to take remedial action.”); Forsberg v. Pacific N.W. Bell Tel.

Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (holding a district court is “not required

to comb the record to find some reason to deny a motion for summary judgment”).

      On appeal, Choi cites her affidavit, in which she says she sent e-mails to her

supervisors to complain about Sechrist’s inappropriate comments. The record does

not contain copies of these alleged e-mails. But an e-mail that is in the record is

one she sent to a supervisor, complaining only about Sechrist’s work ethic and

alleging Sechrist falsely blamed her for causing a gas leak. Absent any supporting

evidence, her affidavit is insufficient to create a genuine issue of material fact. See

Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam) (“When the

nonmoving party relies only on its own affidavits to oppose summary judgment, it

cannot rely on conclusory allegations unsupported by factual data to create an issue

of material fact.”).

      AFFIRMED.




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