NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY CLAFLIN,
Plaintiff

- Appellant,

v. DENIS MCDONOUGH, Secretary of Veterans Affairs,
Defendant

- Appellee. No. 22

- 15524
D.C. No. 2:19

- cv - 04718

- JJT

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding Argued and Submitted April 20, 2023 Phoenix, Arizona Before: TALLMAN, OWENS, and BADE, Circuit Judges.
In February 2014, a whistleblower alleged that the Veterans Affairs H ealth
C are S ystem in Phoenix, Arizona , had used secret waitlists to conceal prolonged wait times for appointments, and that dozens of veterans had died because of the
VA’ s failure to provide medical care in a timely manner . Th at allegation caused a
national political scandal , leading to the resignation of then

- VA Secretary Eric

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAY 2 2023
MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Shinseki . O ther VA officials were either removed or retired. Plaintiff

- Appellant Nancy Clafli n was the Nurse Executive at the Phoenix VA Medical Center and part
of the hospital’s five

- member senior leadership team , known as the PENTAD

. T he
Director and Associate Director of the PENTAD were placed on leave in May 2014
and later fired. Claflin retired in August 2014

. A fourth member of the PENTAD
left in June 201 5 after seeing the “writing on the wall” about the “desire to change leadership at the Phoenix VA

. ” T he final remaining PENTAD member was
terminated sometime in 2016. Claflin alleges her retirement was involuntary and contends these latter two
executives

— both younger male s

— received better treatment. She also allege s she was subject ed to a hostile work environme nt. After exhausting her administrative remedies, Claflin sued the VA Secretary alleging she was harassed and forced into retirement because of her gender and age in violation of Title VII , 42 U.S.C. § 2000e

2 , and the Age Discrimination in Employment Act (ADEA) , 29 U.S.C. § 623. The
district cou rt granted the Secretary’s motion for summary judgment because , eve n taking the evidence in the light most favorable to Claflin , she could not show satisfactory work performance as required to establish a prima facie case of
discrimination under McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)

. The district cou rt also dismissed her hostile work environment claim. We have jurisdiction under 28 U.S.C. § 1291 and review a grant of summary judgment de3 novo. Reynaga v. Roseb u rg Forest Prod s

. , 847 F.3d 678, 685 (9th Cir. 2017). We
affirm. First, t o establish a pr ima facie case of age or gender discrimination under McDonnell Douglas , the employee must show t hat : (1) she i s a member of a protected class; (2) she was performing her job satisfactorily; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably. See Hawn v. Exec. Jet Mgmt. , 615 F.3d 1151, 1156 (9th Cir. 2010) (sex discrimination) ; Opara v. Yellen , 57 F.4th 709, 722 (9th Cir. 2023) (age discrimination) . The parties agree Claflin i s a member of a
protect ed class under both Title VII and the ADEA because she was female and over forty years old. See 29 U.S.C. § 631(a)

. However, the district court correctly found
that Claflin could not e stablish a prima facie case of discrimination for failure to
show that her 2014 performance met the VA’s “ legitimate expectations

. ” Reynaga , 84 7 F.3d at 691. “Minor” or “infrequent” performance deficiencies typically will not preclude a plaintiff from establishing a prima facie case of discrimination , but severe or repeated misconduct may
. See Diaz v. Eagle Produce Ltd. P’ship , 521 F.3d 1201, 1208 (9th Cir. 2008)

. Here, the evidence shows that Claflin , as the senior nursing
executive for the Phoenix VA Medical Center , was not meeting the VA’s legitimate performance expectations concerning the care of veterans

. In July 2014 , while the4 ac cess crisis was making national news , a third

- party hospital accreditation agency
conducted a surprise inspection of the Phoenix VA and found numerous problems. Relevant to this appeal , the third

- party surveyor r eported that VA staff in Phoenix
feared bullying from senior leadership and thought they would face retaliation for speaking to the surveyor

. Glenn Costie, who had been brought in and made Acting
Director of the Phoenix VA after the story broke , learned the surveyor was enraged
because C laflin had shadowed her through the hospital and was questioning VA staff
who had been interviewed about their conversation s with the surveyor. Costie
testified the s urveyor threatened to recommend disapprov al of the hospital’s

acc reditation because of Cl aflin’s conduct. Claflin argues that the district court failed to consider the length of her tenure
at the VA and her p revious positive performance evaluations. We agree that a plaintiff’s history of work without discipline ma y well be evidence of satisfactory performance. See Aragon v. Republic Silver State Disposal, Inc. , 292 F.3d 654, 659

- 60 (9th Cir. 2002)

. But when an employee engage s in significant misconduct that justif ies removal, past performance alone cannot create a genuine issue of material
fact about satisfactory performance. Here, C laflin’s conduct in 2014 is not disputed

— she admitted to following the surveyor and questioning employees t hat

t he surveyor interview ed

. While we are mindful of the low evidentiary threshold to establish a prima facie case of discrimination, see Opara , 57 F.4th at 722 , there is5 no genuine dispute about the fact that Claflin engaged in conduct that jeopardized the hospital’s accreditati on
. She therefore was not meeting the VA’s legitimate performance expectations when she retir ed in 2014. Second, we affirm the dismissal of Claflin’s hostile work environment claim.
A hostile work environment exists where the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993 ) (cleaned up). Claflin’s only argument on this point is that she was criticized by her supervisors during the waitlist crisis and that this criticism caused stress and anxiety,
but the record lacks evidence that this criticism occurred “because of” Clafl in’s age or gender. 29 U.S.C. § 623(a)(1); 42 U.S.C. § 2000e

- 2(a)(1). The district court correctly found there was insufficient evidence of either unlawful discrimination or
a hostile work environment.
AFFIRMED.