FILED

NOT FOR PUBLICATION

OCT 30 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TANISHA MARIE TATUM, No. 18-15762

Plaintiff-Appellant, D.C. No. 2:16-cv-00185-SPL

v.

MEMORANDUM*

DAVITA HEALTHCARE PARTNERS,

INC., a Delaware Company; SUN CITY DIALYSIS CENTER, LLC, DBA Palm Brook DaVita Dialysis, a Delaware limited liability company,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Submitted October 21, 2019** San Francisco, California

* 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). Before: BYBEE and N.R. SMITH, Circuit Judges, and MENDOZA,*** District Judge.

Appellant Tanisha Tatum worked for just over one year at appellee DaVita

Healthcare Partners’s dialysis clinic in Sun City, Arizona. Tatum had several

interpersonal conflicts with co-workers and resigned shortly after lodging a formal

complaint with the human-resources department. She then sued DaVita and the

clinic (together, “DaVita”), claiming she was discriminated against based on her

race and was constructively discharged in retaliation for her complaint.

The district court granted summary judgment in DaVita’s favor on both of

Tatum’s claims; Tatum now appeals. We affirm.

1. Tatum alleges that she was subjected to a hostile work environment based on

her race. To establish a prima facie hostile-work-environment claim, a plaintiff

must show “(1) the defendants subjected her to verbal or physical conduct based on

her race; (2) the conduct was unwelcome; and (3) the conduct was sufficiently

severe or pervasive to alter the conditions of her employment and create an abusive

working environment.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th

Cir. 2008). Tatum complains of several incidents she argues combined to create a

hostile work environment. But her co-workers’ conduct, while offensive, generally

*** The Honorable Salvador Mendoza, Jr., United States District Judge for the Eastern District of Washington, sitting by designation. 2 falls into the “offhand comments category of non-actionable discrimination,”

Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (internal quotation

marks omitted), and any conduct directed at Tatum personally was not severe or

pervasive enough to rise to the level of abusive, see Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (noting that Title VII is not a “general civility

code” and that “simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and

conditions of employment”) (internal quotation marks and citation omitted).

Even if Tatum were subjected to a hostile work environment, her claim still

fails because there is no evidence that DaVita knew about the mistreatment and

failed to take remedial action. See Nichols v. Azteca Rest. Enters., Inc., 256 F.3d

864, 875 (9th Cir. 2001). This is especially true in light of Tatum’s resignation

while DaVita was beginning its investigation into her complaint.

2. To establish a prima facie case of retaliation, Tatum “must show (1)

involvement in a protected activity, (2) an adverse employment action, and (3) a

causal link between the two.” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th

Cir. 2000). It is undisputed that Tatum engaged in protected conduct by reporting

allegedly racist comments. But Tatum’s claim fails at the second element of her

prima facie case.

3 Because Tatum failed to show that she was subjected to a hostile work

environment, she cannot “meet the higher standard of constructive discharge:

conditions so intolerable that a reasonable person would leave the job.” Id. at 930.

Even considering the evidence in the light most favorable to Tatum, we cannot see

“how a reasonable trier of fact could find that she was driven from the workplace.”

Id. Tatum therefore fails to show that she suffered an adverse employment action.

AFFIRMED.

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