                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          MAR 19 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

CHARLOTTE S. YEE,                                No. 10-16376

               Plaintiff - Appellant,            D.C. No. 3:08-cv-04259-MMC

  v.
                                                 MEMORANDUM *
HILDA L. SOLIS, Secretary of the
Department of Labor,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                              Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Charlotte S. Yee appeals pro se from the district court’s summary judgment

in her employment action alleging discrimination, harassment, and retaliation in

violation of Title VII, as well as claims under the Privacy Act and the Civil Service


          *
             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).
Reform Act (“CSRA”). We have jurisdiction under 28 U.S.C. § 1291. We review

de novo, Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004), and

we affirm.

      The district court properly granted summary judgment on Yee’s race and sex

discrimination claims because Yee failed to raise a genuine dispute of material fact

as to whether she was subjected to an adverse employment action, whether

similarly situated individuals outside of her protected class were treated more

favorably, and whether the legitimate, nondiscriminatory reasons for defendant’s

actions were pretextual. See id. at 640-41 & n.5 (requirements for discrimination

claim); Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1125-26

(9th Cir. 2000) (discussing “adverse employment action”).

      The district court properly granted summary judgment on Yee’s retaliation

claim because Yee failed to raise a triable dispute as to whether she was subjected

to an adverse employment action, and whether the legitimate, nondiscriminatory

reasons for defendant’s actions were pretextual. See Hardage v. CBS Broad. Inc.,

427 F.3d 1177, 1188-89 (9th Cir. 2005) (no adverse action where plaintiff did not

dispute basis for adverse performance memoranda); Vasquez, 349 F.3d at 642

(circumstantial evidence of pretext must be specific and substantial).

      The district court properly granted summary judgment on Yee’s harassment


                                          2                                       10-16376
claim because Yee failed to raise a triable dispute as to whether the alleged

harassing conduct was because of her race or sex and was sufficiently severe or

pervasive to alter the conditions of her employment. See Vasquez, 349 F.3d at 642

(describing requirements for a racial or sexual harassment claim).

      The district court properly granted summary judgment on Yee’s Privacy Act

claim as moot. See Rouse v. U.S. Dep’t of State, 567 F.3d 408, 414 & n.4 (9th Cir.

2009) (Privacy Act claim moot where the requested file was already obtained).

      The district court properly upheld the Merit Systems Protection Board’s

(“MSPB”) decision to dismiss Yee’s constructive discharge claim because the

MSPB applied the correct legal standards, and the MSPB’s findings are supported

by substantial evidence. See Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir.

1994) (deferential review of MSPB decision); Heining v. Gen. Servs. Admin., 61

M.S.P.R. 539, 551 (1994) (standard for constructive discharge under the CSRA).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)

(per curiam).

      Yee’s remaining contentions, including those concerning leave to amend the

complaint to add a whistleblower claim, are unpersuasive.

      AFFIRMED.


                                          3                                     10-16376
