                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 19 2012

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




                            FOR THE NINTH CIRCUIT



TALOREN GOVAN, an unmarried man,                 No. 11-16499

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00057-DGC

  v.
                                                 MEMORANDUM *
SECURITY NATIONAL FINANCIAL
CORPORATION, a Utah corporation;
CRYSTAL ROSE FUNERAL HOME
INCORPORATED, an Arizona
corporation; GREER-WILSON
FUNERAL HOME INCORPORATED, an
Arizona corporation,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                           Submitted December 6, 2012 **
                             San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.



        *
             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).
      Taloren Govan appeals the district court’s order granting summary judgment

to defendants Security National Financial Corporation and the funeral homes Greer

Wilson and Crystal Rose (collectively, “SNFC”) on his claims of discrimination

and retaliation based on race and religion in violation of Title VII, the Arizona

Civil Rights Act, and 28 U.S.C. § 1981. We have jurisdiction pursuant to 28

U.S.C. § 1291. After de novo review, we affirm.

      Govan worked at several funeral homes owned by SNFC between 2008 and

2010. He was hired at Crystal Rose Funeral Home in June 2008, and shortly after

was promoted to manager. Govan was transferred to the financially ailing Adobe

Chapel and changed from a salaried to an hourly employee. Reorganization did

not save Adobe, which closed not long after Govan arrived. When Adobe closed,

Govan’s job was eliminated, and he was once again transferred, this time to be a

runner at Greer Wilson, a third SNFC home. In March 2009, Govan’s pay was cut

as a part of a broad pay reduction program to avoid layoffs. His pay was cut more

than others’ to align his wage with his duties as a runner. Unhappy with his

treatment, and allegedly having been subject to a few discriminatory comments,

Govan filed a complaint with the EEOC in August 2009, alleging that SNFC

discriminated against him on the basis of race and religion. The following month,

Govan developed a bulging disk in his back and told his supervisor that he would


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not return until he recovered. Govan was cleared to return to Greer Wilson in

April 2010, but with a restriction that he not lift bodies. At that time, Greer Wilson

management notified Govan that his former position was not available but offered

him work on an on-call basis. Govan accepted this offer. Next, however,

following a short period of work as a runner, Govan resigned on June 11, 2010.

Crystal Rose and Greer Wilson closed in December 2010.

      The district court properly granted summary judgment on Govan’s claims

that the various changes to his employment were adverse employment actions

constituting disparate treatment based on his race and religion. We agree with the

district court’s judgment that Govan did not establish a prima facie case of

discrimination under McDonnell Douglas for some of these changes to his

employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). But

even if Govan had established a prima facie case for every change, SNFC proffered

legitimate, nondiscriminatory reasons for each of its employment actions. See

Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005) (citing St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07 (2005)). Govan did not raise a

genuine issue of material fact as to whether these legitimate, nondiscriminatory

reasons were pretextual. See id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 507–08 (2005); see also Noyes v. Kelly Servs., 488 F.3d 1163, 1169 (9th Cir.


                                          3
2007) (applying the McDonnell Douglas burden-shifting regime to a reverse

religious-discrimination claim). The record tells the story of SNFC facing

financial challenges and responding by moving employees, including Govan, to

different posts and altering pay scale and changing hours. If the characterization is

correct, that is not in itself actionable. The key question here was whether these

financial developments and larger-picture changes were merely a cover for what

was improper discriminatory treatment of Govan. Because, as the district court

held, Govan did not raise a genuine factual issue on pretext, the general picture

presented by management survived and the discrimination claims relating to these

changes of position for Govan failed.

      Govan next claims that SNFC subjected him to a hostile work environment

on account of his race and religion. The district court properly granted SNFC’s

motion for summary judgment on this claim because the incidents Govan alleged

were not “sufficiently severe or pervasive to alter the conditions of the plaintiff’s

employment and create an abusive work environment.” Vasquez v. Cnty. of Los

Angeles, 349 F.3d 634, 642 (9th Cir. 2003).

      Govan also claims that SNFC unlawfully retaliated against him because he

filed a charge of discrimination with the EEOC. Summary judgment was proper

on this claim because Govan did not show a causal link between his protected


                                           4
activity and the alleged materially adverse action, his change from full-time to on-

call status after a long medical leave. See Surrell v. Cal. Water Serv. Co., 518 F.3d

1097, 1108 (9th Cir. 2008). To establish a causal link sufficient to survive

summary judgment based only on temporal proximity, the protected activity and

the adverse action must be “very close,” Clark Cnty. Sch. Dist. v. Breeden, 532

U.S. 268, 273–74 (2001) (per curiam), unless the plaintiff has presented a “valid

reason for the delay” and offered “other evidence to support the inference of a

retaliatory motive,” Porter v. Cal. Dept. of Corr., 419 F.3d 885, 895 (9th Cir.

2005). Here the two events were more than six months apart—too distant to

support an inference of causation based on timing alone. See Clark Cnty., 532 U.S.

at 273–274 (citing cases finding periods of three and four months too long).

Govan’s proffered “valid reason for the delay” is that SNFC retaliated against him

when he returned from medical leave, which he argues was the “very first

opportunity they had to adversely affect Mr. Govan’s employment following his

protected activity.” But Govan still worked for SNFC after he filed his EEOC

charge, so SNFC had time to retaliate against him before his injury if it had chosen

to do so. Govan is left only with the timing of his alleged materially adverse

employment action. In the circumstances shown by this record, Govan’s proof is

insufficient to establish a prima facie case of retaliation.


                                            5
      Finally, the district court correctly ruled that Govan’s claim of negligent

supervision is barred by the exclusive-remedy provisions of Arizona’s workers’

compensation statute, which preclude tort claims against an employer unless the

employee’s injury is caused by the employer’s “willful misconduct.” See Ariz.

Rev. Stat. Ann. § 23-1022 (1995); Irvin Investors, Inc. v. Super. Ct., 800 P.2d 979,

980–82 (Ariz. Ct. App. 1990).

      We affirm the district court’s rejection of Govan’s intentional infliction of

emotional distress claim because he did not oppose SNFC’s motion for summary

judgment on this claim and did not raise or support this claim in his opening brief.

See Fed. R. App. P. 28(a)(9)(A).

      AFFIRMED.




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