                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        FEB 27 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 DOROTHY L. COLE,                                  No. 15-56120

                  Plaintiff-Appellant,            D.C. No.
                                                  2:13-cv-08658-GW-RZ
   v.

 LYNWOOD UNIFIED SCHOOL                           MEMORANDUM *
 DISTRICT, a Public Entity,

                  Defendant-Appellee.

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

                            Submitted February 6, 2017**
                               Pasadena, California

Before: KLEINFELD, IKUTA, and NGUYEN, Circuit Judges.

        Dorothy Cole alleges that the Lynwood Unified School District

(“Lynwood”) improperly terminated her and denied her promotions because of her

race, age, and disability, and in retaliation for lodging complaints. The district



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
court granted summary judgment in favor of Lynwood. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1. Cole’s California Fair Employment and Housing Act (“FEHA”) claims

are time-barred. See Cal. Gov’t Code § 12960(d) (establishing a limitations period

of one year plus ninety days). She was terminated on February 28, 1999 and

denied promotions in February 2009 and June 2010. Because she did not file her

Department of Fair Employment and Housing complaint within one year plus

ninety days of these adverse employment decisions, her FEHA claims are

untimely.

      2. Cole’s racial discrimination claim under 42 U.S.C. § 1981 is also time-

barred. See Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1048

(9th Cir. 2008) (noting that “federal courts borrow the forum state’s limitations

period for personal injury torts” for § 1981 discrimination claims); Krupnick v.

Duke Energy Morro Bay, L.L.C., 9 Cal. Rptr. 3d 767, 768 (Ct. App. 2004) (noting

the two-year statute of limitations for personal injury). Because Cole did not file

her complaint within two years of being denied the promotions, her § 1981 claim

based on racial discrimination is untimely.

      3. Even assuming Cole’s retaliation claim under 42 U.S.C. § 1981 is timely,

the claim fails on the merits. Cole contends that she was not promoted because she

complained to her teacher’s union and the school district. Her complaints,


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however, were lodged after her rejections for the director and coordinator

positions. Therefore, Cole cannot establish a prima facie case of retaliation. See,

e.g., Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (explaining that in order to

establish a prima facie case of retaliation, a plaintiff must show a causal link

between the protected activity and an adverse employment action).

      4. Even assuming Cole’s retaliation claim under the Rehabilitation Act is

timely, the claim fails on the merits. Lynwood asserts that it terminated Cole

pursuant to the then-existing California Education Code. Since Lynwood has

advanced a legitimate reason for terminating Cole, the burden shifts to Cole to

explain why that reason was pretextual. See Chuang v. Univ. of Cal. Davis, Bd. of

Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (“[P]laintiff must show that the

articulated reason is pretextual ‘either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of credence.’” (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981))). Cole fails to point

to any evidence or explain how any alleged discrimination led to the adverse

employment decision, and therefore summary judgment in favor of Lynwood was

properly granted.

      AFFIRMED.




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