                                                                           FILED
                           NOT FOR PUBLICATION                                JUL 03 2014

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



                            FOR THE NINTH CIRCUIT


ANNE M. JOHNSTON,                                No. 12-16131

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01067-JRG

  v.
                                                 MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General, United States Postal Service,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                Joseph R. Goodwin, Chief District Judge, Presiding

                       Argued and Submitted April 11, 2014
                            San Francisco, California

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

       Anne Johnston appeals the district court’s dismissal of her unlawful

termination claim against Postmaster General Patrick Donahoe. Specifically, she

argues that the district court on summary judgment erred in failing to consider

whether she had been terminated for activity protected under the participation


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
clause of Title VII. We may affirm a grant of summary judgment on any ground

supported by the record, Video Software Dealers Ass’n v. Schwarzenegger, 556

F.3d 950, 956 (9th Cir. 2009), and we do so here.

      Even assuming that Johnston raised sufficient arguments under the

participation clause such that the district court should have ruled on the issue, and

even assuming that Johnston established a prima facie case of retaliatory

termination at the first step of the three-step, burden-shifting test from McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), summary judgment was nonetheless

properly granted because Johnston failed to demonstrate that the nonretaliatory

reasons offered by the United States Postal Service (“USPS”) for her termination

were pretextual.

      In the exhibits accompanying the Postmaster General’s motion for summary

judgment, Postmaster Day made clear that Johnston was fired because her

unauthorized possession of photocopies of confidential USPS documents outside

the office resulted in a fundamental breach of trust in the employer/employee

relationship. Moreover, the Notice of Removal issued by USPS noted that

Johnston’s actions violated a number of USPS standards of conduct. In response,

Johnston merely reiterated her allegation that USPS had terminated her




                                           2
employment based on “unauthorized possession of postal records,” which

represented “retaliation for engaging in protected activity.”

      USPS did not contravene Title VII in terminating Johnston’s employment on

the nonretaliatory bases it proffered, and Johnston failed to refute the legitimacy of

USPS’s actions or show that they were pretextual in nature. See Hashimoto v.

Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (affirming summary judgment where the

employee “establish[ed] a minimal prima facie case of retaliation” under the

participation clause, but “[did] nothing to refute the government’s proferred [sic]

legitimate reasons for disciplining [him]”).

      AFFIRMED.




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