facts establish that after a two-week delay, during which Rodriguez was on leave,

he was released by his supervisor and free to transfer to another position. He does

not allege that he was adversely impacted by the delay in his transfer. Third,

2 Rodriguez also failed to present any evidence that similarly situated employees outside his protected class received more favorable treatment.

3 Rodriguez resigned before the appeal of his negative performance review was

resolved. Therefore, the negative performance review was not sufficiently final to

constitute an adverse employment action. See Brooks v. City of San Mateo, 229

F.3d 917, 930 (9th Cir. 2000).

2. Rodriguez’s claim for unlawful discharge in violation of

Washington’s public policy against discrimination also fails because he has not

established that he was constructively discharged. To demonstrate constructive

discharge, Rodriguez must show that (1) his employer deliberately made working

conditions intolerable, (2) a reasonable person in his position would be forced to

resign, (3) he resigned because of the intolerable condition and not for any other

reason, and (4) he suffered damages as a result of being forced to resign. See

Peiffer v. Pro-Cut Concrete Cutting & Breaking Inc., 6 Wash. App. 2d 803, 829

(2018).

Rodriguez has not raised a genuine dispute of material fact that he was

forced to resign. He alleges that his working conditions were made intolerable by

Wilmot’s remarks and the delayed approval of his transfer to another position. We

disagree. Wilmot’s remarks were made between April and August 2017, nine

months prior to Rodriguez’s resignation in May 2018. See Montero v. AGCO

Corp., 192 F.3d 856, 861 (9th Cir. 1999) (employee was not constructively

discharged where harassing behavior ceased three to four months before

4 resignation). Although Rodriguez’s transfer to another position was initially

delayed, his transfer was ultimately approved. He had an outstanding offer to

move into the new position at the time of his resignation. These circumstances are

not “sufficiently extraordinary or egregious” that a jury could find they amount to a

constructive discharge. Brooks, 229 F.3d at 930. Thus, Rodriguez’s claim for

unlawful discharge fails as a matter of law.

3. Finally, the district court did not abuse its discretion in denying

Rodriguez leave to amend his complaint. Rodriguez failed to demonstrate the

diligence necessary to establish good cause to modify the court’s scheduling order

under Federal Rule of Civil Procedure 16(a). See Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). He alleged that his

counsel became aware of new claims while reviewing documents produced by

Boeing in preparation for depositions. The documents were produced in January

2019, five months before Rodriguez’s counsel prepared for depositions in June

2019. Even after becoming aware of the new claims in June 2019, Rodriguez

waited until September 2019 to move for leave to amend. On this record, the

district court did not abuse its discretion in denying Rodriguez leave to amend.

AFFIRMED.

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