                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 11 2012

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




                            FOR THE NINTH CIRCUIT



RHONDA WILKINSON,                                No. 11-15032

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01561-JCM-RJJ

  v.
                                                 MEMORANDUM *
CLARK COUNTY SCHOOL DISTRICT,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                             Submitted June 26, 2012 **

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

       Rhonda Wilkinson appeals pro se from the district court’s judgment

dismissing without prejudice her action against the Clark County School District

for employment retaliation and racial discrimination. We have jurisdiction under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291. We review the district court’s order de novo, Cholla Ready Mix,

Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), and we affirm.

      The district court properly dismissed Wilkinson’s retaliation claim related to

her May 2007 performance evaluation because it was time barred. See Payan v.

Aramark Mgm’t Servs. L.P., 495 F.3d 1119, 1121 (9th Cir. 2007) (“If a litigant

does not file suit within ninety day ‘[of] the date EEOC dismisses a claim,’ then

the action is time barred.” (citation omitted)).

      Dismissal of Wilkinson’s retaliation claim related to her October 2007

grievance hearing was proper because her allegations were insufficient to state a

claim. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (in

order to state a retaliation claim, plaintiff must allege an adverse employment

action); Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 2000) (harsh

words or threats do not constitute a materially adverse employment action); see

also Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.

2001) (“We can affirm the district court’s dismissal for failure to state a claim on

any basis fairly supported by the record.”).

      The district court properly dismissed Wilkinson’s retaliation claim related to

the remaining factual allegation for failure to exhaust her administrative remedies.

See Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726,


                                            2                                     11-15032
730 (9th Cir. 1984) (Title VII plaintiffs must exhaust administrative remedies, and

courts may only consider incidents not listed in the original EEOC charge if they

are “‘like or reasonably related to the allegation of the EEOC charge’” (citation

omitted)).

      The district court also properly dismissed Wilkinson’s 42 U.S.C. § 1981

claim because Wilkinson failed to allege that she was discriminated against on

account of her race or ethnicity. See Johnson v. Riverside Healthcare Sys., LP, 534

F.3d 1116, 1123 (9th Cir. 2008) (“§ 1981 creates a cause of action only for those

discriminated against on account of their race or ethnicity”).

      AFFIRMED.




                                          3                                    11-15032
