                                                                           FILED
                               NOT FOR PUBLICATION                          APR 08 2010

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



                           FOR THE NINTH CIRCUIT


LORI MCGRATH,                            )     No. 09-15820
                                         )
      Plaintiff – Appellant,             )     D.C. No. 3:07-CV-00292-LRH-VPC
                                         )
      v.                                 )     MEMORANDUM *
                                         )
STATE OF NEVADA                          )
DEPARTMENT OF PUBLIC                     )
SAFETY,                                  )
                                         )
      Defendant – Appellee.              )
                                         )

                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                               Submitted March 11, 2010 **
                                San Francisco, California

Before:      FERNANDEZ, THOMAS, and CALLAHAN, Circuit Judges.

      Lori McGrath appeals from the district court’s judgment and asserts that the

district court erred when it granted summary judgment against her and in favor of


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
the State of Nevada, Department of Public Safety, Nevada Highway Patrol

(“NHP”). We affirm.

      (1)      McGrath asserts that the district court erred when it determined that

she had not spelled out a prima facie case for retaliation pursuant to the retaliation

provisions of Title VII1 for events before she filed a complaint with the Nevada

Equal Rights Commission and EEOC (collectively “NERC”) in January of 2002.

We disagree. McGrath could not spell out a case unless NHP subjected her to an

adverse employment action after she had engaged in a protected activity. See

Nilsson v. City of Mesa, 503 F.3d 947, 953–54 (9th Cir. 2007). The record shows

that prior to the 2002 filing she had not opposed any alleged discriminatory

practice by NHP. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d

1185, 1197 (9th Cir. 2003); see also Crawford v. Metro. Gov’t of Nashville &

Davidson County, 129 S. Ct. 846, 850, 172 L. Ed. 2d 650 (2009). That, by the

way, includes her claim that the State Attorney General refused to represent her in

an action filed against her.2


      1
          See 42 U.S.C. § 2000e–3.
      2
        That claim would also be barred because she never did file a complaint
about it with the appropriate agency. See B.K.B. v. Maui Police Dep’t, 276 F.3d
1091, 1099–1100 (9th Cir. 2002); Vasquez v. County of Los Angeles, 349 F.3d
634, 644 (9th Cir. 2004). Moreover, the final decision of the Attorney General was
                                                                       (continued...)

                                            2
      (2)    McGrath also claims that the district court erred in determining that

she was not retaliated against after she filed complaints with NERC. She claims

retaliation because an officer, who had asked her for a date and been refused, was

transferred into the division of NHP where she worked. Again, we disagree. Not

every act of NHP became an adverse employment action simply because McGrath

did not agree with it. See Brooks, 229 F.3d at 928; see also Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345

(2006). Here, the transferred employee had not previously severely harassed her,3

did not harass her while in the division, and was seen infrequently by her because

NHP required that he work a different shift.4

      (3)    McGrath’s assertion that the district court erred because it failed to

make a cumulative analysis is otiose. McGrath has not shown evidence of separate

instances of retaliation that should have been accumulated. Nothing plus nothing




      2
       (...continued)
to provide for her representation. See Brooks v. City of San Mateo, 229 F.3d 917,
929–30 (9th Cir. 2000).
      3
      See Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991); see also Ray v.
Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
      4
        McGrath complains that the district court improperly refused to consider a
report. However, the report was not properly sworn to or authenticated. In any
event, it would not have affected the grant of summary judgment.

                                          3
is still naught.

       AFFIRMED.




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