NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 11 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HIEN THI NGUYEN, No. 23-55632

Plaintiff-Appellant, D.C. No. 2:21-cv-04327-VAP-AS v.

JOHN PHELAN, in his official capacity as MEMORANDUM* Secretary of the Navy,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding

Submitted April 11, 2025** San Francisco, California

Before: FRIEDLAND, BENNETT, and BADE, Circuit Judges.

Plaintiff-Appellant Hien Nguyen, a woman of Vietnamese national origin,

appeals the district court’s orders (1) denying in part her motion to compel,

(2) denying reconsideration of her motion for a discovery extension, (3) striking

* 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). her untimely exhibits in opposition to Defendant-Appellant John Phelan’s (the

Navy’s)1 motion for summary judgment and (4) granting the Navy’s motion for

summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court’s discovery rulings for abuse of discretion.

IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1119 (9th Cir. 2020). We review a

district court’s grant of summary judgment de novo. LN Mgmt., LLC v. JPMorgan

Chase Bank, N.A., 957 F.3d 943, 949 (9th Cir. 2020).

1. Nguyen does not show that the district court abused its discretion in

any of the challenged discovery orders. The district court is “vested with broad

discretion to permit or deny discovery,” and we will not disturb a “decision to deny

discovery . . . except upon the clearest showing that the denial of discovery results

in actual and substantial prejudice to the complaining litigant.” Laub v. U.S. Dep’t

of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (internal quotation marks and

citation omitted). Nguyen fails to explain how the additional discovery she sought

would have prevented summary judgment, so she has not shown prejudice. See

Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994).

We similarly conclude that the court did not abuse its “broad discretion” to enforce

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), John Phelan, in his official capacity as Secretary of the Navy, is automatically substituted as Defendant-Appellee.

2 its local rules by striking Nguyen’s untimely filed exhibits.2 Id. at 842 n.2.

2. Nguyen failed to meet her burden to establish a genuine dispute of

material fact sufficient to defeat summary judgment on her claims that the Navy

discriminated against her under Title VII or the Age Discrimination in

Employment Act (ADEA).3 “We combine the Title VII and ADEA claims for

analysis because the burdens of proof and persuasion are the same.” Wallis v. J.R.

Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994).

Assuming without deciding that Nguyen established a prima facie case of

discrimination, see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th

Cir. 2002), the Navy met its burden to “articulate some legitimate,

nondiscriminatory reason for” Nguyen’s poor performance reviews, failure to

secure a third tour, and ultimate termination, Opara v. Yellen, 57 F.4th 709, 723

(9th Cir. 2023) (quoting EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.

2009)). Nguyen then did not meet her burden to “show that the articulated reason

is pretextual.” Id.

2 Nguyen attached many of the same exhibits to her opening brief on appeal. Because those documents were not before the district court, the Navy’s motion to strike those exhibits (Dkt. 32) is granted. See Fed. R. App. P. 10(a). 3 As a federal employee claiming discrimination against a government agency, Nguyen may recover only for allegedly discriminatory acts occurring within 45 days of her contact with an Equal Employment Opportunity counselor. See 29 C.F.R § 1614.105(a)(1); Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002). We therefore consider only those events that Nguyen has alleged within that timeframe. See Lyons, 307 F.3d at 1108.

3 Ample evidence establishes that Nguyen failed to complete basic

assignments, required extra review or supervision, and lacked sufficient technical

and communication skills, all leading to her poor reviews and termination. The

same performance and communication problems, as well as funding issues, also

prevented her from securing a third tour assignment.

Nguyen presents little to no evidence that the Navy’s actions were “more

likely motivated” by discrimination based on sex, race, national origin, or age.

Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)

(quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)). Nguyen

cites a colleague’s testimony that he had observed anti-Vietnamese discrimination

at Nguyen’s workplace and believes it still occurs, as well as offhand comments by

coworkers characterizing her as “old.” Even when construed in the light most

favorable to her, however, Nguyen’s evidence is neither “specific [nor] substantial”

enough to show pretext. Villiarimo, 281 F.3d at 1062. Nor does she demonstrate

that the Navy’s explanations for its adverse actions are “unworthy of credence.”

Chuang, 225 F.3d at 1124 (quoting Tex. Dep’t of Cmty. Affs., 450 U.S. at 256).

Because “‘abundant and uncontroverted independent evidence’ suggests that ‘no

discrimination . . . occurred,’” Nguyen at most creates “‘a weak issue of fact’”

insufficient to survive summary judgment. Opara, 57 F.4th at 724 (alteration in

original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

4 (2000)).

3. Nguyen fails to establish a prima facie hostile work environment

claim under Title VII or the ADEA. To do so, Nguyen must establish that she

experienced unwelcome conduct because of a protected characteristic that was

“sufficiently severe or pervasive to alter the conditions of [her] employment and

create an abusive work environment.”4 Manatt v. Bank of Am., NA, 339 F.3d 792,

798 (9th Cir. 2003) (quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.

2002)); see also Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104,

1109 (9th Cir. 1991) (noting hostile work environment claims are cognizable under

the ADEA), superseded by statute on other grounds as recognized by Dominguez-

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1041–42 (9th Cir. 2005). We

consider the totality of the circumstances, and the environment must “be both

objectively and subjectively offensive.” Fried v. Wynn Las Vegas, LLC, 18 F.4th

643, 648 (9th Cir. 2021) (quoting Faragher v. City of Boca Raton, 524 U.S. 775,

787 (1998)).

Nguyen fails to demonstrate that the environment she faced was objectively

4 Because hostile work environment claims involve “repeated conduct,” not just “discrete acts,” we may consider all unlawful acts alleged so long as at least one falls within the 45-day period before Nguyen contacted the Equal Employment Opportunity (EEO) counselor. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 117 (2002); see also 29 C.F.R. § 1614.105(a)(1). Nguyen’s allegations satisfy that requirement, so we consider all arguments and evidence regarding her hostile work environment claim.

5 offensive or hostile. Once again, the only age-related statements Nguyen identifies

as hostile are “offhand comments and isolated incidents,” which “do not constitute

a hostile or abusive work environment.” Davis v. Team Elec. Co., 520 F.3d 1080,

1095 (9th Cir. 2008) (quoting Faragher, 524 U.S. at 788). The same applies to her

colleague’s comment about Nguyen’s Master’s degree, and the incident where he

gestured towards the men’s restroom and said, “Ladies first.” These fall within the

“ordinary tribulations of the workplace” that the objective hostility standard

“filter[s] out.” Fried, 18 F.4th at 648 (quoting Faragher, 524 U.S. at 788).

Nguyen fails to show how her colleague’s poster display was objectively

offensive, or how it related to one of her protected characteristics, given her

testimony that she felt the poster threatened “people who work hard.” Nguyen also

does not explain why it was objectively offensive for one of her Team Leads to

deny that he was her “supervisor” and suggest she did not understand her

managerial structure, whether or not he was correct.

4. Nguyen also fails to establish a prima facie Title VII or ADEA

retaliation claim. To state a prima facie claim, Nguyen must show that (1) she

engaged in a protected activity, (2) she suffered an adverse employment action,

and (3) there was a causal connection between the two. Maner v. Dignity Health, 9

F.4th 1114, 1127 (9th Cir. 2021) (applying the elements of a retaliation claim

under Title VII); Poland v. Chertoff, 494 F.3d 1174, 1179–80 (9th Cir. 2007)

6 (applying the same elements under the ADEA).

First, Nguyen establishes no causal connection between her contact with the

EEO counselor and her termination. Even though the two events were close in

time, the record shows that those involved in her termination were unaware that

she had contacted the EEO counselor. Therefore, temporal proximity is

insufficient to establish causation. See Raad v. Fairbanks N. Star Borough Sch.

Dist., 323 F.3d 1185, 1197 (9th Cir. 2003).

Second, Nguyen’s complaint to her supervisor about the poster display was

not protected activity because she did not oppose “conduct [constituting] an

unlawful employment practice” and she did not “participat[e] in the machinery set

up by Title VII [or the ADEA] to enforce [their] provisions” in making her

complaint. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (quoting Silver

v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978)). Although Nguyen argues that her

complaint qualifies as protected activity because a supervisor considered it so,

Nguyen testified that she had complained out of fear for her ability to succeed

based on hard work, not out of fear of discrimination based on a protected

characteristic. Cf. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411–12 (9th Cir.

1987) (holding employee’s opposition to radio show format change was not

protected activity because he opposed the change for “personal reasons” related to

his success at the radio station).

7 Finally, Nguyen’s incomplete attempt to request formal reconsideration of

her performance ratings is neither a protected activity nor an adverse employment

action by the Navy. Cf. Hashimoto, 118 F.3d at 680 (finding protected activity

occurred where the claimant “participat[ed] ‘in the machinery set up by Title VII’”

(quoting Silver, 586 F.2d at 141)); Poland, 494 F.3d at 1180 (“An adverse

employment action is ‘any adverse treatment that is based on a retaliatory motive

and is reasonably likely to deter the charging party or others from engaging in

protected activity.’” (emphasis added) (quoting Ray v. Henderson, 217 F.3d 1234,

1242–43 (9th Cir. 2000))). Her decision not to follow through with the formal

reconsideration process is not adverse treatment by the Navy.

AFFIRMED.

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