Frederick Killian v. Leon Panetta , 672 F. App'x 677 ( 2016 )


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  •                             NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       DEC 22 2016
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FREDERICK J. KILLIAN,                            No. 15-56297
    Plaintiff-Appellant,               D.C. No. 3:12-cv-00828-JLS-DHB
    v.
    MEMORANDUM**
    ASHTON B. CARTER,* et al.
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Southern District of California
    Janis L. Sammartino, District Judge, Presiding
    Submitted December 14, 2016***
    Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.
    Frederick J. Killian appeals pro se from the district court’s summary
    judgment in his employment action alleging discrimination in violation of the
    *
    Ashton B. Carter is substituted for his predecessor, Leon Panetta, as
    Secretary of Defense under Fed. R. App. P. 43(c)(2).
    **
    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).
    Age Discrimination in Employment Act (“ADEA”). We have jurisdiction under
    
    28 U.S.C. § 1291
    . We review de novo, Cotton v. City of Alameda, 
    812 F.2d 1245
    ,
    1247 (9th Cir. 1987), and we affirm.
    The district court properly granted summary judgment because Killian failed
    to raise a genuine dispute of material fact as to whether defendant’s legitimate,
    non-discriminatory reason for declining to interview or hire him was pretext for
    discrimination on the basis of Killian’s age. See France v. Johnson, 
    795 F.3d 1170
    , 1173-75 (9th Cir. 2015) (explaining burden shifting framework for analyzing
    an ADEA claim on summary judgment, and setting forth plaintiff’s burden in
    raising a genuine dispute of material fact as to pretext); see also Coleman v.
    Quaker Oats Co., 
    232 F.3d 1271
    , 1284-85 (9th Cir. 2000) (concluding stray
    remarks by members of management and unwise business judgments were not
    sufficient to raise a genuine dispute of material fact as to whether defendant’s
    proffered reasons were pretextual).
    We reject as without merit Killian’s contentions regarding the district court’s
    failure to hold a trial and handling of discovery.
    We do not consider matters not specifically and distinctly raised and argued
    in the opening brief, or arguments and allegations raised for the first time on
    appeal. See Padgett v. Wright, 
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
    2                                      15-56297
    Killian’s request that the court vacate testimony, set forth in his opening
    brief, is denied.
    Killian’s scheduling request, filed on June 20, 2016, is denied as
    unnecessary.
    AFFIRMED.
    3                                    15-56297
    

Document Info

Docket Number: 15-56297

Citation Numbers: 672 F. App'x 677

Filed Date: 12/22/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023