                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 30 2011

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




                            FOR THE NINTH CIRCUIT



ALBERTO FLORES, a single man,                    No. 08-17018

              Plaintiff - Appellant,             D.C. No. 2:06-cv-00679-SMM

  v.
                                                 MEMORANDUM *
PHILLIP VERDUGO, a married man; et
al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                        Argued and Submitted June 16, 2011
                             San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and SAMMARTINO, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Janis L. Sammartino, District Judge for the U.S.
District Court for Southern California, San Diego, sitting by designation.
      Alberto Flores (“Flores”) appeals the district court’s grant of defendants’

summary judgment motion in his Title VII discrimination action against Phillip

Verdugo (“Verdugo”) and Phoenix Union High School District (“District”). We

have jurisdiction under 28 U.S.C. § 1291 and we affirm.

                                          I.

      To determine if an environment is sufficiently hostile or abusive to violate

Title VII, this court considers the “frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “[S]imple

teasing, . . . offhand comments, and isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the terms and conditions of

employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal

quotation marks omitted). Rather, the offensive conduct “must be extreme to

amount to a change in the terms and conditions of employment . . . .” Id.

      In this case, the conduct of which Flores complains was not sufficiently

severe or pervasive to alter the conditions of his employment. Flores contends that

he overheard Verdugo tell another District employee that Flores “knew nothing

about his Hispanic background, that he has been fed with a silver spoon, and he


                                          2
acted like he was white.” However, Verdugo’s single comment about Flores is not

sufficient to show a hostile work environment because “[s]imply causing an

employee offense based on an isolated comment is not sufficient to create

actionable harassment under Title VII.” McGinest v. GTE Serv. Corp., 360 F.3d

1103, 1113 (9th Cir. 2004) (emphasis added). Furthermore, this comment did not

refer to Flores’s national origin and Flores did not bring a claim of racial

discrimination.

      Flores also asserts that he overheard a front-desk staff employee, Joan

Carrillo (“Carrillo”), make disparaging remarks about foreign born students and

their parents. In particular, Flores alleges he overheard Carrillo refer to Mexican

born parents and students as “mojados” and Mexican born students as “mojaditos”

or “wetbacks.” Flores informed Verdugo about these comments and Verdugo

promised to take care of the problem. Flores alleges Carrillo continued to use her

offensive language. But these remarks were not directed at Flores and they did not

humiliate or physically threaten Flores. Most importantly, Flores does not allege

these remarks affected Flores’s working conditions. Overall, Flores does not

proffer sufficient evidence to create an inference that Carrillo’s continued use of

offensive language was “extreme [and] amount[ed] to a change in the terms and

conditions of [Flores’s] employment.” Faragher, 524 U.S. at 788. Hence, the


                                           3
district court properly granted defendants’ motion for summary judgment on this

issue.

                                           II.

         We have subject matter jurisdiction over Flores’s retaliation claim because it

is “reasonably related to” the discrimination claim Flores presented before the

EEOC. Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003); see also Josephs v.

Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006) (“Subject matter jurisdiction

extends over all allegations . . . that either fell within the scope of the EEOC’s

actual investigation or an EEOC investigation which can reasonably be expected to

grow out of the charge . . . .” (emphasis in the original)).

         No genuine issue of material fact exists as to whether Flores suffered

retaliation in violation of Title VII. To establish a prima facie case of retaliation,

Flores must show that (1) he was engaged in an activity protected under Title VII;

(2) he suffered an adverse employment action; and (3) there was a causal link

between his protected activity and the adverse employment action. Little v.

Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002). Flores contends

that he suffered three adverse employment actions in retaliation to his lawsuit: (1)

the District denied Flores’s request for a transfer to another school, (2) the District

refused to process his grievances against Verdugo, and (3) the District transferred


                                            4
Flores to Carl Hayden, where Verdugo’s mentor would be Flores’s boss, even

though Flores had explicitly requested not to be transferred to that school. All

these claims fail on the merits.

      First, transfers within the District are not automatic and Verdugo had no

authority to transfer Flores to a different school. Rather, the record shows that

Flores applied for other open positions within the District. Management at the

schools where he applied determined, without any input from Verdugo, that he was

not the best candidate for the positions he sought. Flores has no evidence that

Verdugo spoke with any of those individuals regarding him.1 Nor has he proffered

any facts that could establish an inference that his discrimination lawsuit played a

role in other administrators’ decisions not to select him for positions for which he

applied or sought to be transferred.

      Second, there is no evidence in the record that the District did not follow its

policy regarding investigations of complaints of discrimination. Flores contends

that in his conversation with Assistant Superintendent for Human Resources Nora

Gutierrez (“Gutierrez”) regarding his grievances, Gutierrez told him that the


      1
        Furthermore, in August 2005, Flores hired an outside company to call
Verdugo and other individuals at the District, to check his references. The
company called Verdugo and Verdugo rated Flores as satisfactory in all areas. The
company’s report further stated that Verdugo’s tone of voice did not lead the
company to think there was a problem.

                                          5
District would not consider his internal grievances unless he dismissed his civil

rights case and fired his lawyer. Flores grossly mischaracterizes what Gutierrez

said. At no point did Gutierrez tell Flores that he had to fire his lawyer and drop

his lawsuit to have his grievances considered. Rather, Gutierrez explained that

because Flores filed his lawsuit and because the District obtained an attorney, all of

Flores’s correspondence would be forwarded to the District’s attorney. Hence, this

transcript does not create an inference of retaliation. Flores does not proffer any

other evidence that the District did not follow its policy regarding investigations of

complaints of discrimination.

         Third, Flores’s transfer to Carl Hayden occurred two years after his filing of

a Charge of Discrimination with the EEOC. Flores fails to provide a causal link

between his discrimination lawsuit and his transfer to the new school. Thus, the

district court properly determined that Flores failed to raise a triable issue of fact as

to whether he suffered an adverse employment action in retaliation to his Title VII

claim.

         AFFIRMED.




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