Sherrill v. Pritzker, 102215 FED9, 13-17670

Docket Nº:13-17670
Party Name:BARBARA ELLEN SHERRILL, Plaintiff - Appellant, v. PENNY PRITZKER, Secretary, U.S. Department of Commerce, [*] Defendant-Appellee.
Judge Panel:Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.
Case Date:October 22, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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BARBARA ELLEN SHERRILL, Plaintiff - Appellant,

v.

PENNY PRITZKER, Secretary, U.S. Department of Commerce, [*] Defendant-Appellee.

No. 13-17670

United States Court of Appeals, Ninth Circuit

October 22, 2015

NOT FOR PUBLICATION

Submitted October 14, 2015 [***]

Appeal from the United States District Court D.C. No. 4:13-cv-00266-RCC for the District of Arizona Raner C. Collins, Chief Judge, Presiding

Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.

MEMORANDUM [**]

Barbara Ellen Sherrill, a former federal employee, appeals pro se from the district court's judgment dismissing her action alleging violations of Title VII and the Whistleblower Protection Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We may affirm on any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

The district court properly dismissed Sherrill's Title VII discrimination and retaliation claims because Sherrill failed to allege facts sufficient to show that defendant discriminated against her because of her sex or retaliated against her for any protected conduct. See Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1074 (9th Cir. 2002) (en banc) ("[I]n order for harassment to be actionable [under Title VII] it has to be a type of discrimination 'because of' race, color, religion, sex, or national origin."); Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) ("[T]he opposed conduct must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation").

Dismissal of Sherrill's Whistleblower Protection Act claim was proper because Sherrill failed to allege facts sufficient to show that defendant took any personnel action because Sherrill made a protected disclosure. See Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 888 (9th Cir. 2004) (elements of a Whistleblower Protection Act claim).

The district court did not abuse its discretion in denying Sherrill's motion for recusal because Sherrill filed it after her case was closed. See Preminger v. Peake, 552 F.3d 757, 769 n.11 (9th...

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