                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 30 2012

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



                             FOR THE NINTH CIRCUIT


MAUREEN UCHE-UWAKWE,                             No. 10-55708

               Plaintiff - Appellant,            D.C. No. 5:05-cv-00983-VAP-OP

    v.
                                                 MEMORANDUM*
R. JAMES NICHOLSON, Secretary of
Veteran Affairs; BRIAN KAWAHARA;
CHI-LEUG CHAN, also known as Roy
Chan, AKA Roy Chan; ELISA ALMERA,

               Defendants - Appellees.,



                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted November 17, 2011
                               Pasadena, California

Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.

         Appellant Maureen Uche-Uwakwe (Uche-Uwakwe) alleges that she was

discriminated against based on her race while working as a pharmacist for a



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
medical center operated by Appellee Secretary of Veterans Affairs. Uche-Uwakwe

challenges the district court’s order granting Appellees’ motion for summary

judgment and dismissing her complaint with prejudice.

      The district court acted within its discretion in sua sponte excluding

evidence submitted for summary judgment that was not properly authenticated,

with two exceptions. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532-33

(9th Cir. 2011). First, the district court abused its discretion in excluding the Equal

Employment Opportunity (EEO) testimony of the VA Center’s EEO Manager,

Sam Maze, and the VA Center’s Employee Relations Specialist, Greg Underwood,

because they were signed by each witness and included a certification that

complied with the requirements of 28 U.S.C. § 1746(2).

      Second, the district court abused its discretion in excluding the EEO records

submitted with a declaration from Underwood because, as an employee in the

Human Resources Department, Underwood had sufficient familiarity and

understanding of the records to authenticate them. See Fed. R. Evid. 803(6); see

also Orr v. Bank of America, NT & SA, 285 F.3d 764, 773-74 & n.8 (9th Cir.

2002), as amended.

      Considering the admissible evidence, Uche-Uwakwe failed to raise a

material issue of fact regarding her prima facie case for failure to promote because


                                           2
she offered no evidence concerning the identity of the person who was chosen to

fill the position. See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027,

1037 (9th Cir. 2005). Uche-Uwakwe also failed to raise a material issue of fact

regarding her hostile work environment claim because the actions alleged were not

sufficiently severe or pervasive. See, e.g., Sanchez v. City of Santa Ana, 936 F.2d

1027, 1031, 1037 (9th Cir. 1990); see also Vasquez v. County of Los Angeles, 349

F.3d 634, 642-44 (9th Cir. 2004), as amended; Kortan v. California Youth Auth.,

217 F.3d 1104, 1106-07, 1110-11 (9th Cir. 2000).

      However, Uche-Uwakwe’s statements did raise a material issue of fact

regarding her prima facie case of disparate treatment because she avowed in her

deposition that others engaged in conduct that she was accused of, and yet did not

receive multiple Reports of Contact (ROCs) or a formal reprimand from the Chief

Pharmacist. See Hawn v. Exec. Jet Mgmt., 615 F.3d 1151, 1156 (9th Cir. 2010).

Uche-Uwakwe also presented sufficient admissible evidence to raise a material

issue of fact regarding her retaliation claim, based primarily on the temporal

relationship between the time she sought EEO counseling or filed an EEO

complaint and the receipt of ROCs and reprimands. See Dawson v. Entek

International, 630 F.3d 928, 937 (9th Cir. 2011).




                                          3
      In addition, Uche-Uwakwe proffered sufficient direct and circumstantial

evidence, including a supervisor’s statement that Nigerians are “stubborn and

inflexible” and the evidence supporting her retaliation claim, to raise an issue of

material fact as to pretext. See Vasquez, 349 F.3d at 642. She also exhausted her

administrative remedies as to her surviving claims. See 29 C.F.R. §

1614.105(a)(1); see also Kraus v. Presidio Trust Facilities Div./Residential Mgmt.

Branch, 572 F.3d 1039, 1044-45 (9th Cir. 2009).

      AFFIRMED in part, REVERSED in part, and REMANDED.

             Costs are awarded to plaintiff.




                                          4
                                                                               FILED
Uche-Uwakwe v. Nicholson, 10-55708                                             MAR 30 2012

                                                                           MOLLY C. DWYER, CLERK
GOODWIN, Circuit Judge, dissenting:                                          U.S. COURT OF APPEALS



      I respectfully dissent. Even if we consider the evidence that the district

court improperly excluded, Uche-Uwakwe has not raised a genuine issue of

material fact that she suffered an adverse employment action.

      I agree with the majority that the district court should have considered the

Maze and Underwood affidavits and the EEO records that were authenticated by

Greg Underwood. I also agree with the majority that, even after considering the

additional evidence, summary judgment was proper on Uche-Uwakwe’s Title VII

claims for failure to promote and for hostile work environment. I disagree,

however, with the majority’s analysis of the disparate treatment and retaliation

claims.

A. Disparate treatment

      A prima facie case of disparate treatment under Title VII requires the

plaintiff to show that “(1) he belonged to a protected class; (2) he was qualified for

his job; (3) he was subjected to an adverse employment action; and (4) similarly

situated employees not in his protected class received more favorable treatment.”

Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010).1


      1
        For other cases that discuss the four-element test for a disparate treatment
claim, see Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1123 (9th Cir.
      Uche-Uwakwe has not alleged an adverse employment action. “[A]n

adverse employment action is one that materially affects the compensation, terms,

conditions, or privileges of employment.” Davis v. Team Elec. Co., 520 F.3d

1080, 1089 (9th Cir. 2008) (internal quotation marks and alterations omitted).

“Among those decisions that can constitute an adverse employment action are

termination, dissemination of a negative employment reference, issuance of an

undeserved negative performance review and refusal to consider for a promotion.”

Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). On the other

hand, “we have held that declining to hold a job open for an employee and

badmouthing an employee outside the job reference context do not constitute

adverse employment actions.” Id. at 929.

      The majority concludes that the reports of contact and the formal reprimand

letter from the Chief Pharmacist, Dr. Brian Kawahara, qualify as adverse

employment actions, but I disagree.



1. Reports of contact

      Between January 3, 2002, and June 24, 2004, coworkers, doctors, and


2009); Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); Moran v.
Selig, 447 F.3d 748, 753 (9th Cir. 2006); Peterson v. Hewlett-Packard Co., 358
F.3d 599, 603 (9th Cir. 2004); Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th
Cir. 2002); Chuang v. Univ. of Cal., 225 F.3d 1115, 1123 (9th Cir. 2000).
patients filed thirty formal reports of contact against Uche-Uwakwe for what they

claimed to be disrespectful or unprofessional behavior.2

      Uche-Uwakwe has not presented any evidence that those reports of contact

affected the compensation, terms, conditions, or privileges of employment. See

Davis, 520 F.3d at 1089. She has also not presented any evidence that those

reports of contact were disseminated, that they were undeserved, or that her

employer encouraged employees to file them. See Brooks, 229 F.3d at 928.

Therefore, the reports of contact do not qualify as an adverse employment action.

2. The reprimand letter

      On August 26, 2004, after the thirty reports of contact had been filed, Dr.

Brian Kawahara issued a letter titled “Notice of Proposed Reprimand” to Uche-

Uwakwe.3 The letter discussed several specific incidents in which Uche-Uwakwe

was alleged to have acted unprofessionally or disrespectfully. Dr. Kawahara met

with Uche-Uwakwe, read the letter to her, gave her two copies, let her read the

letter, and asked her to sign and date it.4 They did not discuss the matter, and the

meeting was adjourned.

      Uche-Uwakwe has not presented any evidence that this reprimand letter


      2
          II ER 190-223.
      3
          II ER 180-83.
      4
          II ER 67-68.
affected the compensation, terms, conditions, or privileges of her employment, see

Davis, 520 F.3d at 1089, or that the letter was disseminated or undeserved, see

Brooks, 229 F.3d at 928-29. Accordingly, the reprimand letter does not qualify as

an adverse employment action.

B. Retaliation

      To establish a prima facie case of retaliation, the employee must show (1)

that she engaged in a protected activity, (2) that she was subsequently subjected to

an adverse employment action, and (3) that a causal link exists between the two

events. Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011).

      The majority again determines that the reports of contact and the reprimand

letter qualify as adverse employment actions. For the reasons stated above, I do

not agree that those actions are adverse employment actions.

      I respectfully dissent and would affirm summary judgment on all claims.




                                          4
