                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 19 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MILA B. WASHINGTON,                             No.   16-15798

                Plaintiff-Appellant,            D.C. No. 2:13-cv-02444-SPL

 v.
                                                MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Steven Paul Logan, District Judge, Presiding

                             Submitted June 8, 2017**
                               Pasadena, California

Before: BEA and HURWITZ, Circuit Judges, and KOBAYASHI,*** District
Judge.

      Mila Washington asked the United States Postal Service (“USPS”) to shorten



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
her work day during her pregnancy, but still pay her for a full day. USPS initially

allowed Washington to take “personal absence time” for hours not worked, but later

reclassified this time off as unpaid Family and Medical Leave Act (“FMLA”) leave.

That reclassification required Washington to use her accumulated paid leave hours

to receive pay for the unworked hours. In this suit, Washington alleges gender and

pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964.1

      The district court granted USPS’s motion for summary judgment. We have

jurisdiction of Washington’s appeal under 28 U.S.C. § 1291 and affirm, because

Washington failed to provide direct or circumstantial evidence of disparate treatment

based on her pregnancy or gender. Young v. United Parcel Serv., Inc., 135 S. Ct.

1338, 1345 (2015).

      1.   Washington claims that USPS improperly denied her 4.61 hours of

personal absence time and reclassified 99.03 hours of personal absence time as

FMLA sick leave. But, under USPS’s personal absence time policy, USPS managers

are permitted to “require the use of . . . sick leave in the case of partial-day absences

for FMLA-covered conditions,” which includes absences caused by pregnancy

complications. Therefore, USPS’s denial and reclassification of personal absence


1
       Although Washington’s complaint also alleged race discrimination, she failed
to argue this claim either in response to USPS’s motion for summary judgment or
on appeal. “Because this argument was not raised clearly and distinctly in the
opening brief, it has been waived.” McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th
Cir. 2009).

                                           2
time do not by themselves “prove[] the fact of discriminatory animus without

inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th

Cir. 1998) (internal quotation marks omitted, alteration incorporated).

      Nor did Washington “offer evidence that gives rise to an inference of unlawful

discrimination.” Hawn v. Exec. Jet. Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010)

(internal quotation marks omitted, alteration incorporated). She failed to show that

similarly situated non-pregnant employees were treated more favorably in the

provision of personal absence time, or that any “other circumstances surrounding”

USPS’s denial and reclassification of personal absence time, which were allowed

under USPS policy, permit “an inference of discrimination.” Id. at 1156 (internal

quotation marks omitted).

      2. Washington claims that USPS denied her call-in request for 8 hours of paid

sick leave. But, she provided no direct evidence of discrimination, nor does she

identify any similarly situated, non-pregnant employees who called in for sick leave

and received it, or describe circumstances from which one could infer

discrimination. See id.

      3.    Washington claims that USPS improperly revoked its original

accommodation which allowed her to work less than 8 hours a day. But it is

undisputed that Washington worked less than 8 hours daily from April 11 to August

23, 2012, was paid for full 8-hour days during that period, and was given FMLA


                                         3
leave going forward. That USPS did not charge this leave as personal absence time

does not mean it denied Washington a work accommodation. And, Washington

identifies no similarly situated employees who were so accommodated. Young, 135

S. Ct. at 1354.

      4.   Washington claims that USPS subjected her to an investigation for

requesting a pregnancy accommodation. The investigation “did not materially affect

the compensation, terms, conditions, or privileges of [Washington’s] employment”

and thus did not constitute an adverse employment action. Chuang v. Univ. of Cal.

Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000). And, Washington provided

no evidence that the investigation, which was initiated because of suspected

timekeeping fraud, was discriminatory.

      AFFIRMED.




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