FILED

NOT FOR PUBLICATION

APR 30 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHLEEN MULLIGAN, an individual, No. 16-56770

Plaintiff-Appellant, D.C. No. 2:15-cv-00712-DDP-AJW v.

VICTORIA A. LIPNIC, Acting Chair of MEMORANDUM* the United States Equal Employment Opportunity Commission,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted April 9, 2018 Pasadena, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and DRAIN,** District Judge.

Plaintiff Kathleen Mulligan appeals the District Court’s grant of summary

judgment to the Defendant Victoria A. Lipnic, Acting Chair of the United States

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. Equal Employment Opportunity Commission (“EEOC”), on Mulligan’s failure to

accommodate, retaliation, and hostile work environment claims. See 42 U.S.C.

§§ 12203(a), 12112(a), (b)(5)(A), 2000e-2(a)(1), 2000e-3(a); 29 U.S.C. § 794a(2).

We affirm.

Mulligan first contends that the EEOC should be estopped from many of its

arguments, because the EEOC’s administrative decisions, manual, and guidance

contradict its positions here. The EEOC contends that there is no inconsistency

and that Mulligan cannot establish estoppel in any event. Even assuming the

EEOC’s positions in its 2005 manual and 2002 guidance materially differ from its

position in this case, the government would be barred by estoppel only if there

were affirmative misconduct. This requires a showing of “affirmative

misrepresentation or affirmative concealment of a material fact by the

government.” Watkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir. 1989) (en banc)

(citation omitted). Inconsistency is not sufficient, and therefore the EEOC is not

estopped.

Mulligan next argues that her failure to accommodate and retaliation claims

were timely even though filed more than 45 days after the claimed adverse action.

Retaliation and failure to accommodate claims are discrete claims that must be

timely filed. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–14

2 (2002) (retaliation); Cherosky v. Henderson, 330 F.3d 1243, 1246–47 (9th Cir.

2003) (failure to accommodate). Mulligan was required to consult an Equal

Employment Opportunity (“EEO”) Counselor “within 45 days of the date of the

matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1); see also Vasquez

v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003). She contends her

delay may be excused because she learned later that retaliatory animus adversely

affected her earlier accommodation requests. Nevertheless, she was required to

bring her claims within 45 days of the alleged adverse employment action, not 45

days from when she became aware that the action was based on retaliatory intent.

See Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1051 (9th Cir.

2008).

The District Court did not err in sua sponte granting summary judgment on

Mulligan’s failure to accommodate claims that were timely, because the record was

sufficiently developed, there was no genuine dispute of fact, and she had

reasonable notice that the sufficiency of her claims would be at issue. See Albino

v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014) (en banc).

Mulligan argues that she has established a prima facie failure to

accommodate claim, but she has not shown that the EEOC intentionally

discriminated against her. See 42 U.S.C. § 1981a(a); Duvall v. County of Kitsap,

3 260 F.3d 1124, 1138 (9th Cir. 2001) (citation omitted). She acknowledges that

some of her accommodation requests were eventually fulfilled, and there is no

indication that the delays were the result of anything other than negligence. As for

the EEOC’s failure to provide permanent staff to escort participants to Mulligan’s

hearings, Mulligan’s request was speculative as she had not asserted that she could

no longer perform that duty. As for her request for assistance with taking notes

during hearings, Mulligan had access to transcripts from the hearings, and she

never explained what accommodation the EEOC should have provided her. See

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115 (9th Cir. 2000) (en banc) (“An

appropriate reasonable accommodation must be effective, in enabling the employee

to perform the duties of the position.”), vacated on other grounds, 535 U.S. 391

(2002).

Next, Mulligan claims that she has established a prima facie claim of

retaliation. Mulligan must show a causal link between her employer’s action and

her protected activity, but she has not alleged that the employees responsible for

fulfilling her accommodation requests had any retaliatory motive. See Ray v.

Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Mulligan’s retaliation claims

based on her allegations of her supervisor’s profane remark and breach of her

medical privacy are not actionable because they are based on only a limited

4 number of hostile remarks. See Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1189

(9th Cir. 2005) (collecting cases), amended on other grounds, 433 F.3d 672 (9th

Cir. 2006). Further, the record does not suggest that the supervisor revealed

Mulligan’s medical information. And as for Mulligan’s retaliation claim based on

the EEOC’s delay in reclassifying her position, she admittedly did not exhaust her

administrative remedies. See Karamanos v. Egger, 882 F.2d 447, 449–51 (9th Cir.

1989) (affirming dismissal of plaintiff’s claims seeking review of agency’s

“reclassification decision on the ground that he failed to exhaust his administrative

remedies”).

Mulligan next asserts that we should for the first time recognize a per se

theory for retaliation claims. We decline to do so. Such a theory would run

counter to the principle that the “antiretaliation provision protects an individual not

from all retaliation, but from retaliation that” is materially adverse to a reasonable

employee. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68

(2006).

Finally, Mulligan asserts hostile work environment claims under Title VII of

the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990

(“ADA”), as amended by the ADA Amendments Act of 2008. For purposes of this

appeal, we assume, without deciding, that a claim under the ADA may exist, but

5 Mulligan has not shown that she was discriminated against on the basis of her

membership in a protected class under either statute. See 42 U.S.C. § 12112(a)

(prohibiting discrimination “on the basis of disability”); 42 U.S.C. § 2000e-2(a)(1)

(prohibiting discrimination based on “race, color, religion, sex, or national origin”).

Discrimination on the basis of prior EEO activity would constitute a claim for

retaliation, not hostile work environment. See 42 U.S.C. §§ 12203(a), 2000e-3(a).

Moreover, she cannot establish a pervasive or severe atmosphere sufficient to

constitute an actionable hostile work environment claim. See Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 67 (1986) (“For . . . harassment to be actionable, it

must be sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.”) (citation, alterations,

and internal quotation marks omitted).

AFFIRMED.

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