                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 06 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

PATRICIA BARNES,                                 No. 12-15525

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00528-ECR-
                                                 WGC
  v.

NATIONAL COUNCIL OF JUVENILE                     MEMORANDUM*
& FAMILY COURT JUDGES,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Nevada
               Edward C. Reed, Jr., Senior District Judge, Presiding

                          Submitted December 3, 2013**
                            San Francisco, California

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.



       Patricia Barnes appeals the district court’s grant of summary judgment to the

National Council of Juvenile and Family Court Judges (the Council), a non-profit

        *
             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).
organization, in her action under the Age Discrimination in Employment Act

(ADEA). Barnes alleged that the Council terminated her employment as an

associate attorney because of her age and in retaliation for her report of bias. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

1.    To establish a prima facie case of an ADEA violation, Barnes must show:

      (1) she was at least forty years old;
      (2) she was performing her job satisfactorily;
      (3) [she was] discharged; and
      (4) [she was] either replaced by a substantially younger employee with
      equal or inferior qualifications or discharged under circumstances
      otherwise giving rise to an inference of age discrimination.

Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (internal

quotation marks and alterations omitted). Barnes failed to establish a prima facie

case under the ADEA. Specifically, Barnes failed to show that “she was

performing her job satisfactorily.” See id.

      The record is replete with undisputed evidence that Barnes had a poor

attitude and failed to comply with the Council’s procedures. Barnes (1) admitted

she did not follow her supervisors’ repeated instructions to read the Council’s

grants, which she knew was required to appropriately code her time; (2) ignored

the Council’s attendance, leave, timeliness, and travel policies; and (3) failed to

correct her behavior after her performance evaluation.



                                          2
      Because Barnes has failed to establish at least one of the elements of a prima

facie case of discrimination, we need not address whether Barnes established that

she was discharged under circumstances otherwise giving rise to an inference of

age discrimination or the remainder of the McDonnell Douglas burden shifting

analysis.

2.    Barnes’s retaliation claim is unexhausted. “Subject matter jurisdiction

extends over all allegations of discrimination 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 of discrimination.” B.K.B. v. Maui Police

Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (quoting EEOC v. Farmer Bros. Co.,

31 F.3d 891, 899 (9th Cir. 1994) (internal quotation marks omitted). Barnes did

not claim retaliation in her EEOC complaint nor did the factual basis of her

complaint (a dispute between Barnes and her immediate supervisor) suggest that an

investigation of retaliation would be expected to grow out of the charge. Even if

Barnes presented enough facts to the EEOC that its investigation would have led to

a claim of retaliation, Barnes still fails to show any causal connection between her

complaint and her termination. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1065 (9th Cir. 2002).

      AFFIRMED.


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