                                                                           FILED
                            NOT FOR PUBLICATION
                                                                              DEC 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TANDY MILLER,                                    No. 13-17091

              Plaintiff - Appellant,             D.C. No. 4:11-cv-00333-TUC-JGZ

  v.
                                                 MEMORANDUM*
GRAHAM COUNTY, et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                     Argued and Submitted December 9, 2015
                            San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges, and SMITH, Chief District
Judge.**

       Plaintiff Tandy Miller appeals the district court’s grant of summary

judgment to defendants Graham County, et al. on Miller’s claims of gender and



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
national origin discrimination, including allegations of a hostile work environment,

and retaliation, all of which she brought pursuant to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. We affirm.

      The facts of this case are known to the parties. We do not repeat them. We

have jurisdiction under 28 U.S.C. § 1291 and review the district court’s grant of

summary judgment de novo. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098

(9th Cir. 2015).1

      Miller’s gender and national origin discrimination claims each suffer from

the same defect: Miller simply cannot point to any evidence, beyond her own

speculation, that similarly situated individuals outside of her protected class were

treated more favorably than she was. See Aragon v. Republic Silver State

Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002) (to establish a prima facie case of

discrimination, plaintiffs must, inter alia, present evidence that similarly situated

employees outside of their protected class were treated more favorably than the

plaintiffs). Miller points to a number of instances where she claims male and

Hispanic employees were treated more favorably than she was. Miller, however,

failed to exhaust her administrative remedies as to her failure to promote claims,

      1
         Accordingly, we have conducted a de novo review of Miller’s evidence
and allegations, even those allegations the district court struck on evidentiary and
jurisdictional grounds.

                                           2
see B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (setting forth

factors courts consider to determine if plaintiffs have exhausted their

administrative remedies in Title VII cases); she did not support her unequal

scheduling and performance review allegations with admissible evidence; and the

remainder of her allegations do not concern individuals with similar job duties to

hers, Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)

(“Individuals are similarly situated when they have similar jobs and display similar

conduct.”) (internal citation and quotation marks omitted). Accordingly, the

district court did not err in holding that Miller failed to establish a prima facie case

of national origin or gender discrimination.

      Miller tries to salvage her gender discrimination claim by arguing that two

comments—one from Michael Aranda, and one from Esgardo Luzania—constitute

direct evidence of discrimination. The district court did not err in rejecting

Miller’s argument. Assuming, arguendo, that the comments constitute direct

evidence of discrimination, Miller fails to allege any nexus between the comments

and any discriminatory employment action. See Vasquez v. Cty. of Los Angeles,

349 F.3d 634, 640 (9th Cir. 2004) (nexus required between direct evidence of

discrimination and adverse employment actions).




                                            3
      The district court also properly granted summary judgment on Miller’s

hostile work environment claim. While Miller has presented evidence that she

experienced a subjectively hostile environment, she does not present evidence to

suggest that a reasonable female Caucasian corrections officer would find the

conduct offensive. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1115 (9th

Cir. 2004) (holding that the objective hostility of the environment must be

considered “from the perspective of a reasonable person belonging to the racial or

ethnic group of the plaintiff.”).

      Finally, the district court did not err in granting summary judgment on

Miller’s retaliation claim. First, many of the allegations to which Miller points as

adverse employment actions occurred prior to Miller engaging in any protected

activity, and, thus, do not support her retaliation claims. See Dawson v. Entek Int’l,

630 F.3d 928, 936 (9th Cir. 2011) (noting that the retaliation claims to survive

summary judgment, plaintiffs “must show the existence of facts from which a

reasonable trier of fact could conclude that sometime during [their employment],

[they] engaged in protected activity and that [their employer], retaliated against

[them] in response to that activity”). And for those actions that occurred after she

engaged in a protected activity, Miller has failed to present any evidence that the

County’s legitimate reason for taking the action was pretext for retaliation. See id.


                                          4
AFFIRMED.




            5
