NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 11 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALINA KORSUNSKA, No. 16-55296

Plaintiff-Appellant, D.C. No. 2:14-cv-06056-CAS-AJW v.

KEVIN K. MCALEENAN, Acting MEMORANDUM* Secretary of Homeland Security,

Defendant-Appellee.1

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Submitted July 9, 2019** Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and AMON,*** District Judge.

1 Kevin K. McAleenan has been substituted for his predecessor, Jeh Charles Johnson, under Fed. R. App. P. 43(c)(2). * 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). *** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. Plaintiff-Appellant Alina Korsunska appeals the district court’s grant of

summary judgment on her claim alleging unlawful retaliation by her former

employer, the Department of Homeland Security (“DHS”), in violation of Title VII

of the Civil Rights Act. See 42 U.S.C. §§ 2000e-3, 2000e-16. Reviewing de novo,

Munoz v. Mabus, 630 F.3d 856, 860 (9th Cir. 2010), we affirm.

We need not decide whether Korsunska made a prima facie showing of

retaliation because, even viewing the record in the light most favorable to her, she

lacks evidence to create a genuine dispute whether DHS’s asserted legitimate

reason for its failure to purge from her electronic and hard-copy personnel files the

Standard Form 50 (“SF 50”) indicating that she had been terminated was

pretextual.2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973);

Munoz, 630 F.3d at 865-66. DHS contends that this allegedly retaliatory action

was a mere administrative oversight, and the record would not permit a reasonable

jury to determine that such an explanation is “unworthy of credence.” Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Korsunska’s theory of pretext depends on two inferences. First is the

2 Korsunska argues that the district court should not have reached this question because the parties did not brief it. But DHS did brief it—DHS argued in its reply brief on its motion to dismiss that Korsunska could not establish a genuine question whether its actions were pretextual, and Korsunska filed a sur-reply in which she declined to respond to this argument. In any event, Korsunska does not identify any additional arguments she would have made in the district court regarding pretext if the sequence of briefing had been different.

2 inference that DHS would have chosen to retaliate against Korsunska by leaving

both the original and corrected forms in her electronic and hard-copy personnel

folders, rather than by simply failing to add the corrected form in the first place.

Second is the inference that, after it deleted the original form from her electronic

personnel folder, DHS expected other federal agencies would access Korsunska’s

hard-copy personnel folder, where the original SF 50 remained, and thus left the

form in that folder to retaliate against Korsunska. But Korsunka has offered no

direct or circumstantial evidence that makes either inference reasonable. On the

contrary, DHS’s actions are consistent with its contention that the original SF 50

was not purged from Korsunska’s files due to administrative errors. In particular,

DHS immediately complied with the settlement agreement by generating a new SF

50 showing that Korsunska had resigned, and it then purged the original SF 50

from her electronic official personnel folder of its own accord after discovering

two years later that the form remained there in error. DHS also presents evidence

that federal agencies generally access electronic versions of personnel files, and

Korsunska offers no competent evidence to support her speculation that any

potential employer would have consulted the hard-copy records where the

incorrect SF 50 remained. Given that DHS took steps to comply with the

settlement agreement and voluntarily corrected its mistake in the electronic file

even before Korsunska brought the error to the agency’s attention, no reasonable

3 jury could conclude that it was actually attempting to retaliate and that its

professed explanation was therefore pretextual.

AFFIRMED.

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