                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             MAY 11 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
JASMINE BOWERS, M.D.,                            No.   15-56270

              Plaintiff-Appellant,               D.C. No.
                                                 2:12-cv-09362-SVW-SH
 v.

ROBERT A. McDONALD, in his official              MEMORANDUM*
capacity as Secretary of the Department of
Veterans Affairs,

              Defendant-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                             Submitted May 9, 2017**
                               Pasadena, California

Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.

      1. The district court did not err when, following an evidentiary hearing, it

dismissed with prejudice Dr. Jasmine Bowers’s nonselection discrimination claim.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                            Page 2 of 4
The court did not clearly err in finding that Dr. Bowers failed to contact an Equal

Employment Office (EEO) counselor within 45 days of when she knew or should

have known that she had a claim for discrimination. 29 C.F.R. § 1614.105(a). Dr.

Bowers attended the July 28, 2010, meeting at which Dr. Downs was introduced as

an anesthesiologist and shortly thereafter became aware of facts indicating that Dr.

Downs had been hired as a full-time equivalent anesthesiologist. Nor did the

district court clearly err in finding that Dr. Bowers had constructive notice of the

45-day deadline. In the hospital, posters stating “you must initiate contact with an

EEO counselor within 45-days of the date of the alleged act of discrimination”

were displayed on the first floor and next to the entrance to human resources.

These posters were sufficient to provide hospital employees, including Dr. Bowers,

with constructive notice of the 45-day deadline. Johnson v. Henderson, 314 F.3d

409, 415 n.4 (9th Cir. 2002). Dr. Bowers’s claim that she was denied adequate

discovery in advance of the evidentiary hearing is without merit. Wells Fargo &

Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977) (“An appellate

court will not interfere with the trial court’s refusal to grant discovery except upon

the clearest showing that the dismissal resulted in actual and substantial prejudice

to the litigant . . . .”).
                                                                            Page 3 of 4
      2. The district court properly granted the hospital’s motion for summary

judgment on Dr. Bowers’s removal claim. We assume, without deciding, that Dr.

Bowers made out a prima facie case. The hospital produced evidence of Dr.

Bowers’s unsatisfactory job performance during the September 14, 2010, surgery

as a legitimate, nondiscriminatory reason for removing Dr. Bowers from the

anesthesiology schedule and for refusing to reinstate her. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifted to Dr. Bowers

to show that the hospital’s proffered reason was pretextual. Id. at 804.

      Dr. Bowers has not raised a triable issue of material fact as to pretext. She

did not produce evidence from which a reasonable trier of fact could conclude that

there was a culture of race and age discrimination within the anesthesia

department. Nor could a rational jury conclude that Certified Registered Nurse

Anesthetists were similarly situated to anesthesiologists as it relates to disciplinary

action, given that the nurse anesthetists were supervised during surgery at the

hospital where Dr. Bowers worked while the anesthesiologists were not. See

Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Finally, Dr. Braunfeld’s

decision to hire Dr. Downs for a full-time equivalent position does not give rise to

a plausible inference of pretext. Dr. Braunfeld, who had supervised Dr. Downs

before hiring him, discussed the full-time equivalent position with him before
                                                                             Page 4 of 4
speaking with Dr. Bowers and before posting the job on a public website. Even

without resorting to reliance on the same-actor inference, we conclude that the

district court properly granted summary judgment on Dr. Bowers’s removal claim.

      3. The district court also properly granted the hospital’s motion for

summary judgment on Dr. Bowers’s retaliation claim. We will again assume

without deciding that Dr. Bowers has established a prima facie case for her

retaliation claim. Surrell v. California Water Service Co., 518 F.3d 1097, 1108

(9th Cir. 2008). The hospital has shown that Dr. Bowers’s performance during the

September 14 surgery was a legitimate, non-retaliatory reason for its decision to

remove her from the anesthesiology schedule and deny reinstatement. Dr. Bowers

has failed to raise a triable issue of material fact as to whether the hospital’s

proffered explanation is unworthy of credence. Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). The hospital had a legitimate reason for

removing Dr. Bowers from the anesthesiology schedule, which occurred before she

engaged in any protected activity. And the hospital’s decision not to reinstate her

based on that same reason is supported by an outside review of her performance

during the surgery in question.

      AFFIRMED.
