Munoz v. Mabus

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YSAURO R. MUNOZ, 

Plaintiff-Appellant, No. 08-16374

v. D.C. No.

RAYMOND EDWIN MABUS, JR.,*  1:06-cv-00649-JMS-

Secretary, Department of the KSC

Navy, OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Hawaii

J. Michael Seabright, District Judge, Presiding

Argued and Submitted

October 12, 2010—Honolulu, Hawaii

Filed December 27, 2010

Before: Michael Daly Hawkins, M. Margaret McKeown and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Hawkins

*Raymond Edwin Mabus is substituted for his predecessor, Gordon R.

England, as Secretary of the Department of the Navy, pursuant to Fed. R.

App. P. 43(c)(2).

20635

20638 MUNOZ v. MABUS

COUNSEL

Steven M. Spiegel, Alexandria, Virginia, for the plaintiff-

appellant.

Thomas A. Helper, Assistant United States Attorney, Hono-

lulu, Hawaii, for the defendant-appellee.

OPINION

HAWKINS, Senior Circuit Judge:

Ysauro Munoz appeals an adverse summary judgment rul-

ing on two claims arising from a single dispute over whether

a Title VII predetermination settlement agreement required

the Navy to provide him a particular type of training. Munoz

foremost brings a breach of contract action, over which the

MUNOZ v. MABUS 20639

district court lacked subject matter jurisdiction, and we there-

fore vacate summary judgment on Count 1 and remand with

instructions to dismiss. Munoz also alleges that the denial of

training was in retaliation for filing his underlying age and

race discrimination complaint. We have jurisdiction over this

Count and affirm.

BACKGROUND

I. Facts

Munoz has been employed for a number of years at the

Naval Ship Repair Facility (“Ship Repair”) in Yokosuka,

Japan. As an Engineering Technician in the Combat Systems

Department, Weapons System Division, Munoz provides

technical, repair, and modernization services to the Navy’s

ships and weapons systems. Munoz has worked on a variety

of weapons systems over the course of his career, prominently

including the MK 13 Guided Missile Launcher system.

In response to the command instructions to reduce its per-

sonnel by two, the Combat Systems Department decided in

1997 not to renew Munoz’s overseas travel arrangement and

to eliminate his position (or “billet”) upon his departure.

Munoz consequently enrolled in the Priority Placement Pro-

gram (“PPP”) for return to the United States when a job for

which he qualified became available. While enrolled in the

PPP, Munoz was granted repeated six-month extensions of his

tour at Ship Repair, but his lead responsibilities were gradu-

ally reassigned to other employees. This prompted Munoz to

file a formal Equal Employment Opportunity (“EEO”) com-

plaint alleging longstanding discrimination on the basis of age

and race, including discriminatory denial of career-enhancing

training. Rather than having this claim processed through

EEOC’s review mechanism, Munoz and the Navy voluntarily

entered into a February 28, 2002 settlement agreement to

resolve the discrimination charges. Under the terms of the

agreement, the Navy was required to “provide training to

20640 MUNOZ v. MABUS

enhance Mr. Munoz’s career within 12 months from the date

of th[e] agreement.” In exchange, Munoz agreed to withdraw

his discrimination complaint and not pursue further action.

The agreement also included an integration clause and pro-

vided that any alleged noncompliance be processed in accor-

dance with 29 C.F.R. § 1614.504.

Soon after execution of the agreement, Munoz requested

training on a new missile launch system (Vertical Missile

Launch System, or “VLS”), which was in the process of

replacing the MK 13 Missile. Only certified Systems Mainte-

nance Technicians (“SMTs”), who have completed a special-

ized three-month course, are permitted to supervise VLS

work. Peter Rita, Munoz’s supervisor and Combat Systems

Director, denied the request for VLS training, explaining that

(1) Ship Repair had no vacant VLS positions nor any need for

additional VLS technicians; (2) in any event, even if a posi-

tion were available, Munoz would not qualify until he

acquired years of necessary experience in addition to the

three-month training; and (3) the requested training was cost

prohibitive, amounting to one-third of the annual training

budget for the entire department.

Munoz made several additional requests for VLS training,

all of which were denied on similar grounds. Meanwhile,

however, the Navy sent Munoz to a variety of other training

programs, at least two of which Munoz acknowledges were

career-enhancing, though he insists that the settlement agree-

ment entitles him specifically to VLS training.1

1

Within the twelve-month period provided for in the settlement agree-

ment, Ship Repair sent Munoz to an MK 13 Engineering Working Group

conference, as well as training programs on VLS deluge valve overhaul

and the MK 44 machine gun. Since then, Munoz has also attended train-

ings on magazine sprinkler operations and maintenance, and MK 45 five-

inch gun systems. The last of these sessions qualified him for his current

position as an MK 45 five-inch gun technician at Ship Repair, and he is

no longer on the PPP list for reassignment.

MUNOZ v. MABUS 20641

II. Procedural History

Munoz filed a request with the Navy’s EEO officer to

enforce the settlement agreement, alleging that the denial of

VLS training violated its terms. Upon review of Munoz’s

training records, the agency determined that three of the five

classes Munoz had attended since execution of the settlement

agreement (rigging gear inspection, MK 44 machine gun

training, and the MK 13 Engineering Working Group confer-

ence) were “directly related to [his] duties as an Engineering

Technician, GS-12” and therefore satisfied the Navy’s obliga-

tions to provide “career-enhancing” training. Munoz timely

appealed this decision to the EEOC Office of Federal Opera-

tions.

While his first complaint remained pending, Munoz filed a

formal complaint, this time alleging retaliatory breach as well

as seeking enforcement of the settlement agreement. The

Navy EEO officer issued a report finding no breach. After an

EEOC Administrative Law Judge (“ALJ”) dismissed Munoz’s

hearing request for lack of jurisdiction because the Office of

Federal Operations was already processing an identical claim,

the Navy issued a final decision finding that Ship Repair had

not discriminated against Munoz on the basis of race or age

nor retaliated against him for his prior EEO activity in deny-

ing his requests for VLS training. Munoz appealed to the

EEOC, which consolidated the two appeals and issued a deci-

sion finding that the settlement agreement did not specify any

particular training sessions and that no breach had occurred,

thereby disposing of Munoz’s retaliation claim as well with-

out separately addressing it. Munoz v. England, 2005 WL

1714421, at *2-3 (E.E.O.C. July 12, 2005).

Dissatisfied with the EEOC decision, Munoz filed a com-

plaint in district court alleging: (1) breach of the settlement

agreement; and (2) violation of Sections 704 and 717 of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a),

2000e-16, and of 29 C.F.R. § 1614.101(b). The district court

20642 MUNOZ v. MABUS

held a hearing on the parties’ cross-motions for summary

judgment, at which the court also raised sua sponte whether

it had subject matter jurisdiction over the breach of contract

claim. Concluding that Title VII conferred jurisdiction, the

district court granted Defendant’s Motion for Summary Judg-

ment on both counts.

STANDARD OF REVIEW

We review de novo a district court’s subject matter jurisdic-

tion, interpretation of statutes, and grant of summary judg-

ment. See Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir.

2010); Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002).

Summary judgment is proper if, viewing the evidence in the

light most favorable to the nonmoving party, there is no genu-

ine issue as to any material fact and the moving party is

clearly entitled to judgment as a matter of law. PhotoMedex,

Inc. v. Irwin, 601 F.3d 919, 923 (9th Cir. 2010).

DISCUSSION

I. Count 1: Breach of Predetermination Settlement

Agreement

Although not raised by the parties, we have an independent

obligation to address subject matter jurisdiction before turning

to the merits of the case. Williams v. United Airlines, Inc., 500

F.3d 1019, 1021 (9th Cir. 2007). Whether Munoz’s claim to

enforce a predetermination settlement agreement2 is one over

which the district court had jurisdiction because the claim was

“brought under” Title VII remains an open question in this

2

The contract at issue is known as a “predetermination settlement agree-

ment,” i.e., an agreement negotiated and entered into prior to formal inves-

tigation, determination of reasonable cause, and conciliation attempt by

the EEOC. See 29 C.F.R. §§ 1601.20(a), 1614.603; cf. 42 U.S.C. § 2000e-

5(b) (describing the process for arriving at post-determination voluntary

settlement, known as “conciliation agreements”).

MUNOZ v. MABUS 20643

court.3 See 42 U.S.C. § 2000e-5(f)(3). We now join our sister

circuits in holding that Congress’ waiver of sovereign immu-

nity under Title VII does not extend to suits to enforce settle-

ment agreements entered into without genuine investigation,

reasonable cause determination, and conciliation efforts by

the EEOC. See Lindstrom v. United States, 510 F.3d 1191,

1195 (10th Cir. 2007); Frahm v. United States, 492 F.3d 258,

262 (4th Cir. 2007); cf. Hansson v. Norton, 411 F.3d 231,

234-35 (D.C. Cir. 2005) (holding that a claim for attorney’s

fees was a contractual claim, not one brought under Title VII).

The district court therefore lacked subject matter jurisdiction

over Count 1, the breach of settlement agreement claim.

A. Text of the Regulation

[1] The Navy cannot be sued absent an express Congres-

sional waiver of sovereign immunity. See United States v.

Sherwood, 312 U.S. 584, 586 (1941). Such waiver “cannot be

implied but must be unequivocally expressed.” United States

v. King, 395 U.S. 1, 4 (1969). Furthermore, any legislative

3

Two of our earlier cases bear on this question but do not directly

answer it. In the first, we held that the EEOC could not “leapfrog[ ]” Title

VII administrative procedures, which serve as jurisdictional prerequisites,

by bringing an action to enforce a predetermination settlement agreement.

EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982). That case

involved an enforcement action brought by the EEOC against a private

employer, whereas the instant case involves an individual complainant’s

suit against a federal employer, implicating sovereign immunity concerns

not present in Pierce Packing. In the second, we held the district court

lacked jurisdiction to enforce a predetermination settlement agreement

where the individual complainant had failed to exhaust administrative

remedies under Title VII. Blank v. Donovan, 780 F.2d 808, 809-10 (9th

Cir. 1986). Because the plaintiff in Blank apparently failed even to file an

EEO complaint seeking enforcement of his settlement agreement, as

Munoz has done here, we had no opportunity to decide whether Title VII

confers jurisdiction to enforce settlement agreements once the procedures

of 29 C.F.R. § 1614.504 have been met. See Webster v. Fall, 266 U.S.

507, 511 (1925) (“Questions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to be consid-

ered as having been so decided as to constitute precedents.”).

20644 MUNOZ v. MABUS

waiver of immunity must be strictly construed in favor of the

sovereign and “not enlarged beyond what the language

requires.” United States v. Nordic Vill., Inc., 503 U.S. 30, 34

(1992) (internal alterations and quotations omitted); accord

Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999).

[2] Section 717 of Title VII protects federal employees and

provides an express waiver of sovereign immunity in suits

against the government for discriminatory employment prac-

tices. See 42 U.S.C. §§ 2000e-5(f), 2000e-16. The EEOC is

authorized to enforce the provisions of Section 717 and to

issue rules and regulations as it deems necessary. Id. § 2000e-

16(b); see also 29 C.F.R. § 1614.504 et seq. (EEOC regula-

tions concerning the federal sector). Title VII and the EEOC’s

implementing regulations set forth specific administrative

procedures that a complainant must first exhaust before gain-

ing access to the federal courts on a discrimination complaint.

The employer and employee may, however, choose instead to

resolve the discrimination complaint voluntarily with a settle-

ment agreement, see 29 C.F.R. § 1614.603, in which case the

employee, as Munoz has done here, withdraws his formal

complaint and forgoes his right to a civil appeal therefrom. 29

C.F.R. § 1614.504 prescribes the procedure for claiming a

breach of that agreement, and it is this provision on which the

question of jurisdiction hangs.

To determine whether the district court had jurisdiction

over the breach of settlement claim, we look first to the plain

meaning of § 1614.504 because, “[a]s a general interpretive

principle, ‘the plain meaning of a regulation governs.’ ” See

Safe Air for Everyone v. EPA, 488 F.3d 1088, 1097 (9th Cir.

2007) (quoting Wards Cove Packing Corp. v. Nat’l Marine

Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002)).

[3] 29 C.F.R. § 1614.504 allows an employee alleging

noncompliance to choose between two exclusive remedies,

namely specific performance or reinstatement of the original

MUNOZ v. MABUS 20645

discrimination complaint.4 29 C.F.R. § 1614.504(a). The regu-

lation further provides that the EEOC is limited to awarding

one of these two remedies upon determining that a breach has

occurred. Id. § 1614.504(c). On its face, the regulation is

silent as to whether an employee may proceed to federal court

after receiving an adverse EEOC determination.

[4] Because any waiver of sovereign immunity must be

unequivocally expressed, this silence counsels against a find-

ing of jurisdiction. But the text of § 1614.504(a) does not end

the matter. Had Munoz chosen to reinstate his underlying dis-

crimination complaint instead of seeking specific perfor-

mance, his claim could eventually have been heard in federal

court after exhausting administrative procedures, even though

§ 1614.504 is silent as to that possibility. See 42 U.S.C.

§§ 2000e-5(f)-(k), 2000e-16(c)-(d). The district court held

4

Section 1614.504 is titled “Compliance with settlement agreements and

final action” and states in pertinent part as follows:

(a) . . . If the complainant believes that the agency has failed to

comply with the terms of a settlement agreement or decision, the

complainant shall notify the EEO Director, in writing, of the

alleged noncompliance . . . The complainant may request that the

terms of [the] settlement agreement be specifically implemented

or, alternatively, that the complaint be reinstated for further pro-

cessing from the point processing ceased.

(b) . . . If . . . complainant is not satisfied with the agency’s

attempt to resolve the matter, the complainant may appeal to the

Commission for a determination as to whether the agency has

complied with the terms of the settlement agreement or decision.

...

(c) . . . If the Commission determines that the agency is not in

compliance . . ., it may order such compliance or it may order

that the complaint be reinstated for further processing from the

point processing ceased. Allegations that subsequent acts of dis-

crimination violate a settlement agreement shall be processed as

separate complaints under § 1614.106 or § 1614.204, as appropri-

ate, rather than under this section.

29 C.F.R. § 1614.504 (emphasis added).

20646 MUNOZ v. MABUS

that other sections of the EEOC’s regulations likewise provide

an unambiguous path to federal jurisdiction when a complain-

ant elects to seek specific performance. We thus consider

whether those surrounding regulations include a waiver of the

government’s sovereign immunity that allows the exercise of

jurisdiction over Munoz’s breach of settlement agreement

claim.

B. Regulatory Context

[5] No such waiver of sovereign immunity exists in the

regulatory or statutory scheme as a whole; rather, reading 29

C.F.R. § 1614.504 in context only reinforces our conclusion

that Congress had no intention of providing a cause of action

based on an alleged breach of a predetermination settlement

agreement.

The district court’s conflation of generic “complaints” of

noncompliance with formal Title VII “complaints” of prohib-

ited conduct led it to the opposite conclusion. The district

court reasoned as follows: (1) 29 C.F.R. § 1614.401(e) allows

a complainant to appeal “an agency’s alleged noncompliance

with a settlement agreement” to the EEOC; (2) § 1614.405

considers an EEOC decision on appeal a “final decision”

within the meaning of § 1614.407; and (3) § 1614.407(c)

allows a complainant to file a civil action within 90 days of

receiving a final EEOC decision. Munoz v. England, 557 F.

Supp. 2d 1145, 1160 & n.12 (D. Haw. 2008).

[6] A closer examination of the regulatory provisions,

however, reveals that “complaint,” as used throughout 29

C.F.R. § 1614, is a term of art as defined by § 1614.103. Sec-

tion 1614.103, titled “Complaints of discrimination covered

by this part,” states that “[i]ndividual and class complaints of

employment discrimination and retaliation prohibited by title

VII [and the ADEA] . . . shall be processed in accordance with

this part.” 29 C.F.R. § 1614.103(a) (emphasis added). Section

1614.407 provides that “[a] complainant who has filed an

MUNOZ v. MABUS 20647

individual complaint” may file a civil action within 90 days

of receiving a final EEOC decision. Id. § 1614.407(c); see

also id. § 1614.106 (discussing “[i]ndividual complaints”).

Accordingly, an employee’s right to a civil appeal pursuant to

§ 1614.407 is limited by the nature of his underlying griev-

ance.

[7] The district court reasoned that Munoz has “already

filed a complaint” (that is, the underlying complaint resolved

by the settlement agreement he now seeks to enforce), and

that this serves as a sufficient gateway for judicial review of

all subsequent EEOC actions concerning him. See Munoz, 557

F. Supp. 2d at 1160 n.12. Because Munoz withdrew this com-

plaint in exchange for securing the settlement agreement, it

cannot serve as a basis for jurisdiction. This scenario appears

to be precisely why § 1614.504 permits an aggrieved

employee to request reinstatement of his complaint for further

processing. The regulatory context does not support an

implied cause of action for the enforcement of predetermina-

tion settlement agreements.

C. The Tucker Act and Sovereign Immunity

We note, finally, that our reasoning conforms with the

Supreme Court’s teaching that a suit to enforce a settlement

agreement requires its own basis of jurisdiction independent

from the federal source of the underlying claim, Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 378, 381-82

(1994), as well as with the Court of Federal Claims’s recent

interpretations of its own exclusive jurisdiction over damage

actions in contract against the United States worth more than

$10,000, pursuant to the Tucker Act, 28 U.S.C. § 1491.5 See,

e.g., Westover v. United States, 71 Fed. Cl. 635 (2006).

5

Congress has effected a limited waiver of sovereign immunity in such

suits pursuant to the Tucker and Little Tucker Acts. Tucker Act, 28 U.S.C.

§ 1491 (exclusive Court of Federal Claims jurisdiction in claims for

$10,000 or more); Little Tucker Act, 28 U.S.C. § 1346(a)(2) (concurrent

20648 MUNOZ v. MABUS

[8] While recognizing that Title VII “provides the exclu-

sive judicial remedy for claims of discrimination in federal

employment,” Brown v. Gen. Servs. Admin., 425 U.S. 820,

835 (1976) (emphasis added),6 the Court of Federal Claims

has recently concluded, in light of Kokkonen, that “Title VII’s

[c]omprehensive [s]cheme of [r]eview [d]oes [n]ot [p]reclude

Tucker Act [j]urisdiction in the Court of Federal Claims

[o]ver Title VII [s]ettlement [a]greements,” Taylor v. United

States, 73 Fed. Cl. 532, 541 (2006); see also Greenhill v.

United States, 92 Fed. Cl. 385 (2010); Westover, 71 Fed. Cl.

at 639. In other words, the Court of Federal Claims has juris-

diction over such claims because they are not “brought under”

Title VII § 706(f)(3). See 42 U.S.C. § 2000e-5(f)(3); cf. Kok-

konen, 511 U.S. at 378, 381-82. Because Munoz’s breach of

settlement agreement claim is essentially a contract action

against the federal government whose resolution requires no

interpretation of Title VII itself, his claim cannot seek juris-

dictional refuge in Title VII and belongs, if anywhere, in the

Court of Federal Claims. See 28 U.S.C. § 1491; Greenhill v.

Spellings, 482 F.3d 569, 575 (D.C. Cir. 2007), reh’g en banc

denied (June 20, 2007); Hansson, 411 F.3d at 234-35.

jurisdiction in the Court of Federal Claims and district courts in claims for

less than $10,000); see N. Side Lumber Co. v. Block, 753 F.2d 1482, 1484-

85 (9th Cir. 1985). The Court of Federal Claims’s § 1491 jurisdiction is

preempted, however, “where Congress has enacted a precisely drawn,

comprehensive and detailed scheme of review in another forum. . . .” St.

Vincent’s Med. Ctr. v. United States, 32 F.3d 548, 550 (Fed. Cir. 1994).

6

Indeed, for a long time, the Court of Federal Claims relied on this prin-

ciple to find that it therefore lacked jurisdiction over suits to enforce settle-

ment agreements resolving Title VII disputes. See, e.g., Fausto v. United

States, 16 Cl. Ct. 750, 752-53 (1989) (“Title VII . . . is the comprehensive,

exclusive, and preemptive remedy for federal employees alleging discrim-

ination.”) (emphasis added); see also Griswold v. United States, 61 Fed.

Cl. 458, 464-65 (2004) (relying on Fausto); Taylor v. United States, 54

Fed. Cl. 423, 425 (2002) (same). This position changed after the Supreme

Court’s decision in Kokkonen.

MUNOZ v. MABUS 20649

[9] Congress, while encouraging resolution of Title VII

complaints through predetermination settlement agreements,7

see 29 C.F.R. §§ 1601.20(a), 1614.603, has nonetheless not

provided for enforcement of such agreements in federal court.

The plain meaning of the text, the overarching regulatory

framework, and the long-held prudential interest in narrowly

construing waivers of sovereign immunity all compel this con-

clusion.8

7

In fact, several other circuits have relied on the central role of volun-

tary agreements in Title VII’s overall statutory scheme in finding Title VII

jurisdiction to enforce such agreements. See EEOC v. Liberty Trucking

Co., 695 F.2d 1038, 1040 (7th Cir. 1982) (reasoning from the “important

remedial purposes” of Title VII that Congress must have “intended to pro-

vide the EEOC with a federal forum to enforce conciliation agreements”);

EEOC v. Safeway Stores, Inc., 714 F.2d 567, 573 (5th Cir. 1983) (same);

EEOC v. Henry Beck Co., 729 F.2d 301, 304-05 (4th Cir. 1984) (extend-

ing the policy reasons for allowing enforcement of conciliation agree-

ments to predetermination settlement agreements); Eatmon v. Bristol Steel

& Iron Works, Inc., 769 F.2d 1503, 1513 (11th Cir. 1985) (holding that

an individual, not just the EEOC, may bring suit under Title VII to enforce

a predetermination settlement agreement); Ruedlinger v. Jarrett, 106 F.3d

212, 214-15 (7th Cir. 1997) (same); but see Pierce Packing, 669 F.2d at

608-09 (drawing distinction between predetermination settlement and con-

ciliation agreements and finding jurisdiction lacking over suits to enforce

the former). None of these cases, however, involved federal employers

and the attendant sovereign immunity concerns that we face here, and we

do not find their reasoning persuasive in this context.

8

Even if the district court had been able to exercise jurisdiction over

Munoz’s breach of settlement agreement claim, we agree with the district

court and with the EEOC that no breach occurred. The settlement agree-

ment stated Munoz would receive career-enhancing training but did not

identify any specific classes. Munoz conceded that the Magazine Sprinkler

Inspection and MK 45 trainings he received were career-enhancing, and

the plain meaning of the agreement entitles him to nothing more. Although

these career-enhancing trainings admittedly took place after the twelve-

month period contemplated by the settlement agreement, Munoz’s reme-

dies under 29 C.F.R. § 1614.504, and as provided for in the agreement

itself, are limited to specific performance or reinstatement of his underly-

ing discrimination complaint. Munoz has chosen not to seek reinstatement

of his complaint. Accordingly, the district court’s determination that it

could grant Munoz no other remedy would be correct even if it had pos-

sessed, for example, supplemental or Tucker Act jurisdiction over the

claim.

20650 MUNOZ v. MABUS

II. Count 2: Retaliation

Without determining whether the settlement agreement

entitled Munoz to VLS training, we now consider whether the

Navy’s denial of his requests was retaliatory in nature.

[10] In a Title VII retaliation action, plaintiff bears the ulti-

mate burden of showing defendant’s stated reasons to be

merely pretextual, once defendant has given legitimate, non-

retaliatory grounds for its actions. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-04 (1973). Plaintiff can satisfy

this burden by producing either direct evidence, such as

“clearly sexist, racist, or similarly discriminatory statements

or actions by the employer,” Coghlan v. Am. Seafoods Co.,

413 F.3d 1090, 1095 (9th Cir. 2005), or circumstantial evi-

dence supporting an inference of retaliatory or discriminatory

motive, so long as such evidence is “specific and substantial,”

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.

1998) (internal quotation marks omitted). Merely denying the

credibility of the employer’s proffered reasons is insufficient

to withstand summary judgment. Lindsey v. Shalmy, 29 F.3d

1382, 1385 (9th Cir. 1994).

Here, the Navy produced legitimate, non-retaliatory, and

non-discriminatory reasons for denying Munoz VLS training,

consistent with the reasons repeatedly given at the time of

Munoz’s requests and prior to commencement of litigation.

First, the only authorized VLS billet was already filled by a

certified SMT, and no other VLS billets were available or

would soon become available; second, even with the class-

room training he sought, Munoz would still be unqualified to

fill a VLS billet, which requires not only SMT certification

but also ten years of on-the-job experience; and third, training

Munoz would be cost-prohibitive.

[11] Munoz is unable to produce more than mere allega-

tions of retaliatory or discriminatory motives. In response to

the Navy’s legitimate explanation that no vacant VLS position

MUNOZ v. MABUS 20651

was available, Munoz argues that the Navy acknowledged a

need for more VLS technicians and had the ability to add new

VLS billets. Even if the Navy could have created a new billet,

Munoz fails to show any retaliatory motive behind its deci-

sion not to exercise that authority. He has no better response

to the Navy’s second proffered reason, simply alleging, with-

out evidence, that his supervisor revised the VLS position

description intentionally to preclude him from qualifying, and

that others lacking the new qualification requirements were

allowed to fill the slot. The assertion is undermined by evi-

dence showing that Ship Repair imposed the ten-year require-

ment before Munoz filed his first complaint or requested VLS

training, and therefore before Ship Repair even had notice that

Munoz wanted VLS training. Unsubstantiated assertions of

retaliatory intent, without more, are insufficient to overcome

the Navy’s proffered neutral reasons. Tarin v. County of Los

Angeles, 123 F.3d 1259, 1265 (9th Cir. 1997), superseded by

statute on other grounds as stated in Leisek v. Brightwood

Corp., 278 F.3d 895, 899 n.2 (9th Cir. 2002).

Finally, Munoz claims that the credibility of the Navy’s

third ground for denial, budgetary constraints, is undermined

by the fact that the Navy paid the same per diem and travel

expenses to send him to other training sessions, such as the

three-month MK 45 training. The district court, however, cor-

rectly concluded that this evidence is not sufficiently specific

and substantial to support an inference of retaliatory intent

where it is the employer’s prerogative to determine how best

to allocate its limited training funds.

[12] Because Munoz was unable to produce evidence

undermining the credibility or validity of the Navy’s proffered

reasons for denying VLS training, summary judgment on the

retaliation claim was proper.

AFFIRMED in part, VACATED in part, and

REMANDED for proceedings consistent with this Opin-

ion. Each party to bear its own costs on appeal.