NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BRANDY BREWER, No. 19-16007

Plaintiff-Appellant, D.C. No.

1:16-cv-01091-SMM-EPG v. LEPRINO FOODS COMPANY, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Stephen M. McNamee, District Judge, Presiding

Argued and Submitted July 17, 2020 San Francisco, California Before: TASHIMA and HURWITZ, Circuit Judges, and MARSHALL,** District Judge.

After the district court granted partial summary judgment in favor of Appellee Leprino Foods Company, Inc. (“Leprino”) on Appellant Brandy Brewer’s (“Brewer”) claim for retaliation under California Labor Code § 1102.5(b)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation. (“Section 1102.5”), a jury found in Leprino’s favor on Brewer’s remaining claims. On appeal, Brewer challenges only the partial grant of summary judgment. We have jurisdiction under 28 U.S.C. § 1291 and review a summary judgment de novo. See Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). We affirm.

supervisor stated she was tracking Brewer’s use of leave under the Family and Medical Leave Act for abuse; (2) the supervisor stated she preferred to work with men over women; and (3) allegations concerning the supervisor’s romantic relationship with another employee. None of these disclosures implicates a violation of the law, and Brewer presented no evidence that she was motivated to disclose her complaints to her supervisors at Leprino due to a belief that a law had been violated. See, e.g., Harris v. City of Santa Monica, 56 Cal. 4th 203, 231 (2013) (holding Fair Employment and Housing Act “does not purport to outlaw discriminatory thoughts, beliefs, or stray remarks that are unconnected to employment decisionmaking.”); Patten, 134 Cal. App. 4th at 1382-85 (disclosure of coworker’s “off-color remark” was a personnel matter not protected by Section 1102.5). To the extent Brewer identifies on appeal other disclosures she believes constitute protected activity, such as her remarks that the supervisor favored male employees with respect to scheduling and shift assignments, we decline to consider those arguments because they were not raised at the motion for summary judgment. See Moreno Roofing Co., Inc. v. Nagle, 99 F.3d 340, 343 (9th Cir. 1996) (“We are not required to consider an argument that was not properly presented to the district court or otherwise preserved for review.”); Lippi v. City Bank, 955 F.2d 599, 604 (9th Cir. 1992) (holding the appellate court’s “review is limited to the record presented to the district court at the time of summary judgment”). Thus, Brewer’s disclosures do not constitute activity protected by Section 1102.5.