The opinion
FILED
NOT FOR PUBLICATION FEB 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARGARET WILDER, in her capacity as No. 11-16503
Personal Representative of the Estate of
Theresa Cameron, D.C. No. 2:08-cv-01490-ROS
Plaintiff - Appellant,
MEMORANDUM *
v.
ARIZONA BOARD OF REGENTS, a
public entity; MICHAEL CROW, in his
official and individual capacity;
WELLINGTON REITER, in his individual
capacity; KENNETH BROOKS, in his
official and individual capacity;
HEMALATA DANDEKAR, in her
individual capacity; JOHN AND JANE
DOES, I-X, in their official and individual
capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted February 14, 2013
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and M. SMITH, Circuit Judges, and CARR, District
Judge.**
Plaintiff-Appellant Margaret Wilder, in her capacity as Personal
Representative of the Estate of Theresa Cameron (Cameron), appeals the district
court’s grant of summary judgment and judgment as a matter of law in favor of
Defendants-Appellees on Cameron’s claims of race discrimination under Title VII
of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and 42
U.S.C. § 1983, gender discrimination under Title VII, retaliation under Title VII,
42 U.S.C. § 2000e-3, and violation of her constitutional right of due process under
the Fourteenth Amendment. We review de novo the district court’s grant of
summary judgment and judgment as a matter of law, Moore v. Local Union 569 of
the IBEW, 989 F.2d 1534, 1537 (9th Cir. 1993), and we affirm.
The district court lacked subject matter jurisdiction over Cameron’s Title
VII gender discrimination claim because Cameron included no allegation of gender
discrimination in her administrative charge before the Equal Employment
Opportunity Commission (EEOC). See Lowe v. City of Monrovia, 775 F.2d 998,
1003–04 (9th Cir. 1985).
**
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
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The district court did not err in finding that Cameron failed to make out a
prima facie claim of retaliation because Cameron failed to produce evidence
supporting a causal link between her complaints and Defendants’ actions. Manatt
v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003).
Applying the burden-shifting framework articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), we find that Cameron failed to present
sufficient evidence that Defendants’ decision to terminate her was a pretext for
racial discrimination. Cameron failed to show that the two Caucasian employees
treated more favorably than her were similarly situated, where those employees
had not “engage[d] in problematic conduct of comparable seriousness.” Vasquez v.
Cnty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003). Cameron also failed to
demonstrate pretext by showing that President Michael Crow put forth inconsistent
explanations for her termination, because Cameron’s poor classroom performance
was noted throughout the termination process, in conjunction with her plagiarism.
Finally, the district court did not err in granting summary judgment on
Cameron’s due process claim. Cameron asserts that she was dismissed based on
poor classroom performance, but that this reason was not explained in the Notice
of Dismissal and as a result, she was not given the opportunity to defend against it
in the agency hearing or in state court. The district court determined that
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Cameron’s due process claims were barred by res judicata because those claims
were, or could have been, raised by Cameron in the state trial court proceedings.
“Under the doctrine of res judicata, a final judgment, entered on the merits in
a prior suit involving the same parties or their privies, bars a second suit on the
same cause of action and is conclusive as to facts which actually were or could
have been decided.” Hall v. Lalli, 952 P.2d 748, 750 (Ariz. 1997). It appears that
Cameron’s due process claim could have been raised prior to the conclusion of the
state trial court proceedings on March 1, 2010, and the district court was correct in
dismissing her claim on the basis of res judicata.
Even if the district court erred in finding that Cameron’s due process claim
could have been raised in the state trial court, her claim fails on the merits. As
discussed supra, Cameron’s poor classroom performance was discussed
throughout the termination process, including in the Notice of Dismissal, in
conjunction with her plagiarism.
AFFIRMED.
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