Luis Pascual v. the Boeing Company , 700 F. App'x 646 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS R. PASCUAL, No. 14-56077
Plaintiff-Appellant, D.C. No. 8:12-cv-02081-CJC-MLG
v.
MEMORANDUM*
THE BOEING COMPANY, a corporation;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Luis R. Pascual appeals pro se from the district court’s summary judgment
in his employment action alleging federal and state law claims related to his
termination. 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). We affirm.
*
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 district court properly granted summary judgment on Pascual’s age
discrimination claim because Pascual failed to raise a genuine dispute of material
fact as to discriminatory motive. See Guz v. Bechtel Nat. Inc., 8 P.3d 1089, 1113
(Cal. 2000) (elements of age discrimination claim under California law).
Because summary judgment on Pascual’s age discrimination claim was
proper, the district court properly granted summary judgment on Pascual’s claims
alleging wrongful termination in violation of public policy and failure to prevent
discrimination. See Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir.
1996) (affirming summary judgment on public policy claim based on anti-
discrimination law where plaintiff failed to a raise triable dispute as to
discrimination claim); Trujillo v. N. Cty. Transit Dist., 73 Cal. Rptr. 2d 596, 601
(Ct. App. 1998) (no cognizable claim for failure to prevent discrimination if “there
has been a specific factual finding that no such discrimination . . . actually
occurred”).
The district court properly granted summary judgment on Pascual’s claims
alleging breach of contract and breach of the implied covenant of good faith and
fair dealing because Pascual failed to raise a genuine dispute of material fact as to
the at-will nature of his employment. See Horn v. Cushman & Wakefield W., Inc.,
85 Cal. Rptr. 2d 459, 474 (Ct. App. 1999) (where employee had at-will
employment status, no cognizable claim for breach of an employment contract or
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for breach of the implied covenant of good faith and fair dealing).
The district court properly granted summary judgment on Pascual’s
retaliation claim under Section 1102.5 of the California Labor Code because
Pascual failed to raise a genuine dispute of material fact as to whether he had
engaged in protected activity. See Mokler v. County of Orange, 68 Cal. Rptr. 3d
568, 580 (Ct. App. 2007).
The district court properly granted summary judgment on Pascual’s claim
under the Veterans’ Preference Act of 1944 because Pascual failed to raise a
genuine dispute of material fact as to whether the Act applies to his circumstances.
See Ford Motor Co. v. Huffman, 345 U.S. 330, 340 (1953) (“Congress . . . did not
make credit for such pre-employment military service compulsory in private civilian
employment.”); 5 C.F.R. § 351.202 (“Employees covered [include] civilian employee
in: (1) The executive branch of the Federal Government; and (2) Those parts of the
Federal Government outside the executive branch which are subject by statute to
competitive service requirements . . . .”).
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).
Pascual’s request to remand for additional discovery, set forth in his opening
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brief, is denied.
AFFIRMED.
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