                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             DEC 13 2010

                                                                          MOLLY C. DWYER, CLERK
STACEY MOODY,                                    No. 10-15118               U.S. COURT OF APPEALS



              Plaintiff - Appellant,             D.C. No. 3:08-cv-01864-MMC

  v.
                                                 MEMORANDUM*
COUNTY OF SAN MATEO;
LAURENCE GAINES; RON SALAZAR,
DOES 1-10, INDIVIDUALLY,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                Maxine M. Chesney, Senior District Judge, Presiding

                     Argued and Submitted November 29, 2010
                             San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.

        Stacey Moody appeals the district court’s grant of summary judgment in

favor of her employer, San Mateo County. We affirm. Because the parties are

familiar with the factual and procedural history of the case, we need not recount it

here.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                           I

      The district court did not abuse its discretion in precluding Moody from

expanding the scope of her hostile work environment claim after the close of

discovery to include new conduct. Although she was aware of the alleged conduct

when she filed this action, she did not allege it in her complaint, nor rely on it on

later responses to the County’s interrogatories. The district court determined that

expanding the scope of Moody’s claims would delay the proceedings and disrupt a

schedule on which the parties had been relying for over a year. Under these

circumstances, the district court acted within its discretion in limiting the scope of

her claim. See Acri v. Int’l Ass’n of Machinists & Aerospace Workers, 781 F.2d

1393, 1398 (9th Cir. 1986) (“[L]ate amendments to assert new theories are not

reviewed favorably when the facts and the theory have been known to the party

seeking amendment since the inception of the cause of action.”).

      Moody’s remaining allegations are insufficient to support a prima facie case

of hostile work environment. The offensive comments occurred four years apart

and were not severe or pervasive enough to create a triable issue of fact. See, e.g.,

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642-43 (9th Cir. 2004) (affirming

summary judgment on hostile work environment claim where plaintiff’s primary

claim arose from statements made more than six months apart). The district court


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did not err in granting summary judgment for the County on Moody’s hostile work

environment claim.

                                          II

      The district court properly granted summary judgment on the gender

discrimination claim. In response to Moody’s prima facie showing that she was

not promoted because of her gender, the County articulated a “legitimate, non-

discriminatory reason for its action.” Dominguez-Curry v. Nev. Transp. Dep’t, 424

F.3d 1027, 1037 (9th Cir. 2005). In response, Moody failed to establish a triable

issue of fact as to pretext surrounding the County’s reasons for not selecting her for

the position. The district court did not abuse its discretion in allowing the County

to submit a declaration in response to new allegations made by Moody in her reply

brief. Absent evidence of pretext, the district court appropriately granted summary

judgment on the gender discrimination claim.

                                         III

       The district court properly granted summary judgment on Moody’s

retaliation claim. Even if we assume, arguendo, that Moody had engaged in

protected activity, Moody did not tender evidence of a “causal link” between her

activity and the adverse employment decision. Vasquez, 349 F.3d at 646.




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Therefore, the district court properly concluded that she had not established a

prima facie case of retaliation.

      AFFIRMED.




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