                                                                                 FILED
                              NOT FOR PUBLICATION                                APR 04 2012

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



                               FOR THE NINTH CIRCUIT


CARL WOODS,                                        No. 11-35119

                 Plaintiff - Appellant,            D.C. No. 2:10-cv-00117-RSM

     v.
                                                   MEMORANDUM*
STATE OF WASHINGTON; et al.,

                 Defendants - Appellees.


                      Appeal from the United States District Court
                         for the Western District of Washington
                      Ricardo S. Martinez, District Judge, Presiding

                          Argued and Submitted March 7, 2012
                                  Seattle, Washington

Before: FERNANDEZ and PAEZ, Circuit Judges, and GWIN, District Judge.**

1.        Appellant Carl Woods appeals the district court’s grant of summary

judgment dismissing his claims against his employer, the University of

Washington (“University”), along with three co-workers and the State of


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Washington (collectively, “Defendants”), for discrimination and retaliation in

violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq., and the Washington Law Against

Discrimination, RCW 49.60 et seq. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

2.     The district court did not abuse its discretion when it excluded evidence of

the Defendants’ misconduct that predated Woods’ previous settlement with the

University from being used as “context” for the instant claims. See Nat’l Steel

Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). The settlement

agreement stipulates that Woods “completely releases” the University and its

agents “from any and all liability that they may have relating to Carl Woods’

employment with the University.” Because the agreement released all claims

“relating to” events from Woods’ employment before the settlement, Woods is

barred from relying on such events to establish his post-settlement claims, or as he

argues, to provide “background” evidence of discriminatory intent.

3.     At the heart of this case are Woods’ retaliation and discrimination claims.

Reviewing de novo the district court’s grant of summary judgment on these claims,

see Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc), we hold that the

district court did not err.


                                          2
4.    The district court properly dismissed Woods’ discrimination claims.1 We

are not persuaded that Woods has raised a triable fact as to whether he suffered an

adverse employment action resulting from either the Formal Counseling or the

Final Counseling. Neither disciplinary action affected Woods’ compensation,

workplace conditions, responsibilities, or status as a lead painter. See Burlington

Northern & Sante Fe Ry. Co. v. White (“Burlington”), 548 U.S. 53, 62-63, 67

(2006). While there is some evidence that an employee in Final Counseling

forfeits his seniority for a temporary period, this does not change the result. Even

assuming the Final Counseling was an adverse action, Woods fails to raise any

genuine issues of material fact regarding pretext. He has adduced no direct or

circumstantial evidence of discriminatory intent on the part of Defendants. See

Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112-15 (9th Cir. 2011).

Notably, Woods has failed to show that Defendants disparately treated him in

comparison to similarly situated employees outside Woods’ protected class.

5.    The district court also properly dismissed Woods’ retaliation claims. As a

preliminary matter, Woods’ sexual harassment complaint against his subordinate,

Schlieman, did not constitute protected activity because it was unreasonable for


      1
        We only consider claims that Woods properly raised in the district court
and on appeal. See USA Petroleum Co. v. Atlantic Richfield Co., 13 F.3d 1276,
1284 (9th Cir. 1994); Fed. R. App. P. 28(a)(9)(A).
                                          3
Woods to believe that Schlieman’s comments constituted an unlawful employment

practice under Title VII. See Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 526

(9th Cir. 1994). Next, assuming Woods’ 2006 lawsuit against the University was a

protected activity, he did not suffer an adverse action as a result. Woods contends

that his supervisor, Frankenhauser, retaliated by refusing to remedy repeated acts

of insubordination displayed by Schlieman. We cannot say that this “might well

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Burlington, 548 U.S. at 67-68 (internal quotation marks omitted).

Even assuming that Frankenhauser’s failure to respond was an adverse action,

Woods has failed to develop a triable issue regarding causation. Eight months had

elapsed between the time Woods filed his prior lawsuit in January 2006, and the

first instance of alleged retaliation in August 2006. This eight-month interval does

not permit an inference of causation. See Villiarimo v. Aloha Island Air, Inc., 281

F.3d 1054, 1065 (9th Cir. 2002).

6.    Because Woods failed to raise a genuine issue of material fact regarding the

foregoing elements of his discrimination and retaliation claims, the district court

properly granted summary judgment for Defendants.

      AFFIRMED.




                                          4
