NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 19 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PAMELA ANNENBERG,                               No.    19-16031

                Plaintiff-Appellant,            D.C. No.
                                                2:17-cv-03090-APG-NJK
 v.

CLARK COUNTY SCHOOL DISTRICT,                   MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Andrew P. Gordon, District Judge, Presiding

                             Submitted June 9, 2020**
                             San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District
Judge.

      Pamela Annenberg is employed as a special-education teacher by defendant

Clark County School District (“District”). Annenberg appeals the district court’s


      *
             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 Patrick J. Schiltz, United States District Judge for the
District of Minnesota, sitting by designation.
grant of summary judgment in favor of the District on her failure-to-accommodate,

disparate-treatment, retaliation, and interference claims under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, 12203. We have jurisdiction under

28 U.S.C. § 1291. Our review is de novo. United States v. JP Morgan Chase

Bank Account No. Ending 8215, 

, 1162 (9th Cir. 2016). Viewing the

facts in the light most favorable to Annenberg,

      Failure-to-accommodate claim. The district court properly granted

summary judgment on Annenberg’s failure-to-accommodate claim because there is

no evidence that Annenberg was denied a reasonable accommodation required by

the ADA. Annenberg contends that the District agreed that she would not have to

complete more than two Individual Education Plans (“IEPs”) per month, and that

the District violated that agreement. But Annenberg’s claim is not for breach of

contract; it is for violation of a federal statute. Under the ADA, the District “need

only provide some reasonable accommodation.” Zivkovic v. S. Cal. Edison Co.,

, 1089 (9th Cir. 2002). The fact that the District failed to provide a

particular accommodation—specifically, the two-IEP-per-month accommodation

that it allegedly promised—does not mean that the District did not provide a

reasonable accommodation. To prove a violation of the ADA, Annenberg must

show that the accommodation that was actually provided was unreasonable. She

made no effort to do so, and thus the District was entitled to summary judgment on


                                          2                                    19-16031
her failure-to-accommodate claim.

      Disparate-treatment claim. The district court properly granted summary

judgment on Annenberg’s disparate-treatment claim because Annenberg failed to

show that she suffered an adverse employment action. In the context of a

discrimination claim, an adverse employment action is one that “materially affects

the compensation, terms, conditions, or privileges of employment.” Davis v. Team

Elec. Co., 

, 1089 (9th Cir. 2008) (internal quotation marks and

alterations omitted). None of the allegedly discriminatory acts cited by Annenberg

rise to the level of an adverse employment action, and thus the District was entitled

to summary judgment on the disparate-treatment claim.

      Retaliation claim. Annenberg argues that her supervisor, Jennifer Ludtke,

retaliated against her after she filed an administrative charge alleging disability

discrimination. Annenberg does not have direct evidence of retaliation, and thus

her claim is analyzed under the familiar McDonnell Douglas framework. See

Curley v. City of North Las Vegas, 

, 632 (9th Cir. 2014).

      Annenberg complains that Ludtke retaliated against her by rating her as

“minimally effective” on her year-end performance evaluation, issuing an oral

warning based on false allegations that Annenberg fell asleep in class, and

criticizing her lesson plans and classroom demeanor. The district court found that

none of these acts qualified as adverse employment actions for purposes of


                                           3                                    19-16031
Annenberg’s retaliation claim for the same reasons that they did not qualify as

adverse employment actions for purposes of Annenberg’s disparate-treatment

claim.

         The district court’s analysis was flawed because “retaliation claims may be

brought against a much broader range of employer conduct than substantive claims

of discrimination.” Campbell v. Haw. Dep’t of Educ., 

, 1021

(9th Cir. 2018) (citing Burlington N. & Santa Fe Ry. Co. v. White, 

,

67–68 (2006)). As noted, something done by an employer is not an adverse

employment action for purposes of a discrimination claim unless it materially

alters the terms or conditions of the plaintiff’s employment. But something done

by an employer is an adverse employment action for purposes of a retaliation

claim—even if it does not materially alter a term or condition of employment—as

long as it would deter a reasonable employee from engaging in the protected

activity. See Ray v. Henderson, 

, 1242–43 (9th Cir. 2000).

         Ludtke’s criticism of Annenberg’s lesson plans and classroom demeanor do

not qualify as adverse employment actions even under this less-demanding

standard. These are the types of “trivial harms” or “minor annoyances” that cannot

support a claim of retaliation under the ADA. 

; see also

Kortan v. Cal. Youth Auth., 

, 1112 (9th Cir. 2000) (finding that

“increased criticism” does not constitute an adverse employment action). But


                                           4                                   19-16031
Ludtke’s formal warning to Annenberg and Ludtke’s evaluation of Annenberg’s

performance as “minimally effective”—both of which became part of Annenberg’s

personnel file, and both of which put Annenberg at risk of more serious discipline

in the future—could deter a reasonable employee from engaging in protected

activity. See Anthoine v. N. Cent. Ctys. Consortium, 

, 750 (9th Cir.

2010) (finding that a “verbal warning” and “an unsatisfactory evaluation” were

adverse actions for purposes of First Amendment retaliation claim); see also

Coszalter v. City of Salem, 

, 976–77 (9th Cir. 2003) (adopting

“reasonably likely to deter” standard in the context of First Amendment retaliation

claims).

      We nevertheless affirm the district court’s dismissal of Annenberg’s

retaliation claim. Even assuming that Annenberg can establish a prima facie case

of retaliation, her claim fails at the remaining steps of the McDonnell Douglas

inquiry. The District put forward legitimate, non-discriminatory reasons for its

actions, and Annenberg failed to raise a genuine issue of material fact as to

whether those reasons were pretextual. The District submitted evidence that

Ludtke issued the oral warning following a report from the general education

teacher with whom Annenberg was cooperatively teaching—a report that was later

corroborated by several students—that Annenberg had fallen asleep during class.

The District also submitted evidence that Annenberg’s “minimally effective” rating


                                          5                                     19-16031
was based on several documented deficiencies in Annenberg’s teaching

performance under the Nevada Education Performance Framework. Annenberg

disagrees with the District’s conclusions—she claims, for example, that she only

appeared to be sleeping in class—but she has failed to introduce evidence that

would allow a jury to find that the District’s proffered explanations are pretextual.

For that reason, we affirm the dismissal of Annenberg’s retaliation claim. See

–34 (finding that absent evidence of pretext, summary

judgment with respect to plaintiff’s retaliation claim was appropriate); Stegall v.

Citadel Broad. Co., 

, 1066 (9th Cir. 2003) (citation omitted)

(explaining that circumstantial evidence of pretext must be both “specific” and

“substantial” to survive summary judgment).

      Interference claim. Finally, the district court declined to consider

Annenberg’s claim for interference because she did not give fair notice that she

was pursuing such a claim until she submitted a memorandum in opposition to the

District’s motion for summary judgment. Having reviewed the entire course of the

proceedings before the district court—and not just the fragments in the complaint

to which Annenberg now points—we have some sympathy for the district court’s

decision. We need not address the issue, however, because even if Annenberg’s

interference claim were preserved, the claim could not survive a motion for

summary judgment.


                                          6                                    19-16031
      In order to state a claim for interference, Annenberg must, at a minimum,

identify a right to which she was entitled under the ADA and allege that the

District interfered with that right in some way. See 42 U.S.C. § 12203(b).

Annenberg mainly argues that the District interfered with her rights under the

ADA by failing to limit the number of IEPs that she was required to complete to

two per month.1 As already discussed, however, Annenberg has not established

that she had a right to this accommodation under the ADA. Moreover, Annenberg

has not introduced evidence of any specific instance of coercion, intimidation,

threatening conduct, or interference related to her exercise of her supposed right to

decline to complete more than two IEPs per month. See

Annenberg has failed to submit any evidence that she suffered a “distinct and

palpable injury” as a result of any interference with her purported right under the

ADA not to be required to complete more than two IEPs per month. See Brown v.

City of Tucson, 

, 1193 (9th Cir. 2003) (citation omitted).

      AFFIRMED.




1
        Annenberg also argues that the District interfered with her right under the
ADA to sit down while teaching. But this accommodation has nothing to do with
Annenberg’s post-perfusion syndrome, which is the only disability at issue in this
litigation.

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