Janice Smets v. Deborah James ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        MAR 23 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JANICE SMETS,                                   No. 16-56551
    Plaintiff-Appellant,            D.C. No. 2:15-cv-08555-JFW-JC
    v.
    MEMORANDUM**
    HEATHER WILSON, Secretary of the Air
    Force,*
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    John F. Walter, District Judge, Presiding
    Submitted March 13, 2018***
    Before:      LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
    Janice Smets appeals pro se from the district court’s summary judgment in
    her action alleging age discrimination and retaliation in violation of the Age
    *
    Heather Wilson has been substituted for her predecessor, Deborah Lee
    James, as Secretary of the Air Force 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).
    Discrimination in Employment Act (“ADEA”) and Title VII. We have jurisdiction
    under 28 U.S.C. § 1291. We review de novo. Vasquez v. County of Los Angeles,
    
    349 F.3d 634
    , 639 (9th Cir. 2004). We affirm.
    The district court properly granted summary judgment on Smets’s age
    discrimination claim because Smets failed to raise a genuine dispute of material
    fact as to whether she was discriminated against on the basis of her age. See
    Cotton v. City of Alameda, 
    812 F.2d 1245
    , 1248 (9th Cir. 1987) (setting forth
    elements of a prima facie case of age discrimination under the ADEA).
    The district court properly granted summary judgment on Smets’s retaliation
    claim because Smets failed to raise a genuine dispute of material fact as to whether
    defendant took an adverse employment action against her. See Cornwell v. Electra
    Cent. Credit Union, 
    439 F.3d 1018
    , 1034-35 (9th Cir. 2006) (setting forth elements
    of a prima facie case of retaliation under Title VII).
    The district court properly denied Smets’s motion to remand the action to
    the Equal Employment Opportunity Commission. See 29 C.F.R. § 1614.409
    (“Filing a civil action . . . shall terminate Commission processing of the appeal.”).
    We reject as without merit Smets’s contention that the district court lacked
    jurisdiction over her action as a “mixed case” complaint or appeal under 29 C.F.R.
    § 1614.302.
    We do not consider matters not specifically and distinctly raised and argued
    2                                    16-56551
    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).
    Smets’s motion to correct the opening brief (Docket Entry No. 26) is
    granted.
    AFFIRMED.
    3                                       16-56551