                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 30 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



AMY MOTT and AGINA BRACKETT,                     No. 09-35641

              Plaintiffs - Appellants,           D.C. No. 6:07-cv-06370-HO

  v.
                                                 MEMORANDUM *
OFFICE DEPOT, INC., a Delaware
corporation licensed in Oregon,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                        Argued and Submitted May 7, 2010
                                Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.

       Amy Mott (“Mott”) and Agina Brackett (“Brackett”) (collectively,

“Plaintiffs”) appeal the district court’s grant of summary judgment to Office Depot,

Inc. (“Office Depot”). Plaintiffs sued Office Depot for sexual harassment, sex

discrimination, and retaliation under Title VII and O.R.S. 659A.030, and for




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violations of the FMLA, the OFLA, and state common law. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.1

                                          I.

      This court reviews de novo the district court’s grant of summary judgment to

determine whether any genuine issues of material fact remain and whether the

district court correctly applied the relevant substantive law. Craig v. M & O

Agencies, Inc., 496 F.3d 1047, 1053 (9th Cir. 2007). “All reasonable inferences

must be drawn in the nonmoving party’s favor, but are limited to those upon which

a reasonable jury might return a verdict.” Id. (internal quotation marks omitted).

This court may affirm where the district court reached a correct result, even if the

district court relied on an erroneous ground. Id.

                                          II.

      Plaintiffs asserted five claims against Office Depot.

                                          A.

      The district court correctly granted summary judgment to Office Depot on

Plaintiffs’ hostile environment claim for sexual harassment under Title VII and

O.R.S. 659A.030. No reasonable jury could find that Plaintiffs established a prima

facie case of a hostile work environment. Kortan v. Cal. Youth Auth., 217 F.3d


      1
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                          2
1104, 1109–10 (9th Cir. 2000). Even if Plaintiffs could make such a prima facie

case, no triable issue of fact remains as to the elements of Office Depot’s

affirmative defense to vicarious liability for Klesh’s conduct: Office Depot

exercised reasonable care to prevent his conduct through its anti-harassment policy

and telephone hotline, and to correct his conduct through a prompt investigation

and termination of Klesh. Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1183–84

(9th Cir. 2005). No reasonable jury could find that the reduction in Plaintiffs’

hours due to Payroll Refresh, or Mott’s alleged constructive discharge months

later, was a “tangible employment action” related to Klesh’s conduct. Id. at 1184.

                                          B.

      The district court correctly granted summary judgment to Office Depot on

Plaintiffs’ quid pro quo sexual harassment claim under Title VII and O.R.S.

659A.030. Klesh did not have authority over Mott when he told her that he would

give her the hours she wanted if she would come work for him at another store, and

no reasonable jury could find that the slight, temporary fluctuation in Brackett’s

hours under Klesh’s supervision related to her rejection of his conduct. See Craig,

496 F.3d at 1054.

                                          C.

      The district court correctly granted summary judgment to Office Depot on

Plaintiffs’ sex discrimination claim under Title VII and O.R.S. 659A.030.

                                          3
Although Office Depot fired Mott, she conceded her job performance was

inadequate, and offered no evidence that she was treated differently from other

similarly situated employees. Kortan, 217 F.3d at 1113. No reasonable jury could

find that Office Depot reduced Plaintiffs’ hours more than those of similarly

situated male employees. Id.

                                          D.

      The district court correctly granted summary judgment to Office Depot on

Mott’s retaliation claim under Title VII and O.R.S. 659A.030.2 No reasonable jury

could find a causal link between Mott’s resistance to Klesh’s conduct and her

reduction in hours due to Payroll Refresh. Kortan, 217 F.3d at 1112. Nor could a

reasonable jury find a causal link between Mott’s participation in the investigation

of Klesh and her eventual termination for poor attendance. Id. Even if Mott could

make a prima facie case, Mott failed to rebut Office Depot’s legitimate reason to

fire her for recurrent attendance problems. Hardage, 427 F.3d at 1188.

                                          E.

      The district court correctly granted summary judgment to Office Depot on

Plaintiffs’ claim for intentional infliction of emotional distress (“IIED”) and

reckless infliction of emotional distress (“RIED”) under Oregon law. See Wheeler


      2
         Brackett does not appeal the grant of summary judgment to Office Depot
on her sex retaliation claim.

                                           4
v. Marathon Printing, Inc., 974 P.2d 207, 217 (Or. App. 1998) (“[M]ere

nonresponsiveness to claims of workplace harassment is insufficient to support

liability for IIED.”). In any event, no reasonable jury could find that Office Depot

was nonresponsive given that it conducted a prompt investigation and then fired

Klesh. Plaintiffs also cannot hold Office Depot vicariously liable under the

doctrine of respondeat superior because no reasonable jury could find Klesh acted

“within the course and scope of employment” when he harassed Plaintiffs.

Vinsonhaler v. Quantum Residential Corp., 73 P.3d 930, 932 (Or. App. 2003).

Plaintiffs waived their RIED claims because they did not specifically and distinctly

argue those claims in their opening brief. Laboa v. Calderon, 224 F.3d 972, 981

n.6 (9th Cir. 2000). In any event, no reasonable jury could find Office Depot’s

actions were outrageous. See McGanty v. Staudenraus, 901 P.2d 841, 849 (Or.

1995).

                                          III.

         Mott asserted three additional claims against Office Depot.

                                           A.

         The district court correctly granted summary judgment to Office Depot on

Mott’s claim for interference with rights provided by the FMLA and the OFLA.

Mott was not eligible for FMLA leave because she had worked at Office Depot for


                                            5
less than a year. Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 n.2 (9th

Cir. 2001). Nor was she eligible for OFLA leave because she had worked for

Office Depot an average of fewer than 25 hours per week for the three months

prior to her leave. O.R.S. § 659A.156(1)(b). Thus, Office Depot could not

interfere with FMLA and OFLA rights Mott had yet to acquire. We need not

decide whether Office Depot is estopped from asserting Mott’s ineligibility for

FMLA and OFLA leave due to its representation that she was eligible for such

leave, because Mott did not detrimentally rely on any such representation. Cox v.

Ocean View Hotel Corp., 533 F.3d 1114, 1123 (9th Cir. 2008).

                                          B.

      The district court correctly granted summary judgment to Office Depot on

Mott’s retaliation claim under the FMLA and the OFLA. Mott did not engage in

an activity protected by the FMLA or the OFLA when she complained that Office

Depot would not allow her to work, or pay her for past work, without a signed

release to work form; the FMLA and the OFLA allow employers to require such a

form. 29 C.F.R. § 825.312; O.R.S. 659A.171(4)(a). While Mott complained that

her medical leave should not be used against her for an attendance-related

disciplinary action, her complaint came after that action; thus, the disciplinary

action could not be in retaliation for her complaint.


                                           6
                                         C.

      The district court correctly granted summary judgment to Office Depot on

Mott’s wrongful discharge claim under Oregon law. No reasonable jury could find

that Mott was subject to a constructive discharge—i.e., that Office Depot

intentionally created or maintained intolerable working conditions with the desire

to cause Mott to leave her employment at Office Depot. McGanty, 901 P.2d at

856–57. Mott was disciplined for poor attendance, and she resigned because she

refused to comply with the expectation that she show up for work without any

attendance problems.

      AFFIRMED.




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