David Kunz v. Smith's Food & Drug Centers Inc. , 497 F. App'x 746 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID LEGRAND KUNZ, No. 11-15986
Plaintiff - Appellant, D.C. No. 2:09-cv-01645-GMS
v.
MEMORANDUM *
SMITH’S FOOD & DRUG CENTERS
INCORPORATED, DBA Fry’s Food
Stores Incorporated,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted June 29, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
David Kunz appeals pro se from the district court’s order granting summary
judgment in his employment action that alleged, among other things,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discrimination, hostile work environment, and retaliation in violation of Title VII
and the Age Discrimination in Employment Act (“ADEA”). He also appeals from
the district court’s orders denying his motion to produce requested information,
motions to add witness, and motion for appointment of counsel. We have
jurisdiction under 28 U.S.C. § 1291, we affirm.
We review de novo a grant of summary judgment. Beene v. Terhune, 380
F.3d 1149, 1150 (9th Cir. 2004). We review for abuse of discretion the district
court’s denial of plaintiff’s motions to produce requested information and to add
witness, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992),
and the district court’s denial of plaintiff’s motion for appointment of counsel.
Johnson v. U.S. Treasury Dept., 27 F.3d 415, 417 (9th Cir. 1994). We affirm.
The district court properly granted summary judgment on Kunz’s age
discrimination claim. Because Kunz failed to timely file a charge of
discrimination, only his constructive discharge claim is timely. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). That claim fails because
Kunz failed to raise a genuine dispute of material fact as to whether he was
replaced by a substantially younger employee with equal or inferior qualifications
or discharged under circumstances otherwise giving rise to an inference of age
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discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
The district court properly granted summary judgment on Kunz’s hostile
work environment claim because Kunz failed to raise a genuine dispute of material
fact as to whether the alleged conduct was severe or pervasive enough to alter the
conditions of Kunz’s employment. See Manatt v. Bank of Am., 339 F.3d 792, 799
(9th Cir. 2003) (affirming summary judgment for employer on Title VII claim of
hostile work environment); Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th
Cir. 2000) (“In order to prevail on her hostile work environment claim, [a plaintiff]
must show that her workplace was permeated with discriminatory intimidation that
was sufficiently severe or pervasive to alter the conditions of her employment”)
(brackets, ellipses, and quotation marks omitted).
The district court properly granted summary judgment on Kunz’s effort to
state a claim under his collective bargaining agreement because Kunz provided
only conclusory allegations and failed to raise a genuine dispute of material fact as
to whether he had exhausted his remedies. See Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978, 985-86 (9th Cir. 2007) (prior to bringing an action, an employee
seeking to vindicate personal rights under a collective bargaining agreement must
show exhaustion of grievance procedures); Angel v. Seattle-First Nat’l Bank, 653
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F.2d 1293, 1299 (9th Cir. 1981) (“mere conclusory allegations unsupported by
factual data” cannot defeat motion for summary judgment).
The district court properly granted summary judgment on Kunz’s claim
brought pursuant to the Arizona Employment Protection Act (“AEPA”) because
the claim is time-barred and not actionable under the AEPA. A.R.S. § 12-541(4);
Lombardi v. Copper Canyon Acad., LLC, 2010 WL 3775408, *6 (D. Ariz. Sept.
21, 2010) (“allegations involving [Family and Medical Leave Act] violations are
not within the parameters of the AEPA”) (citing Galati v. Am. W. Airlines, Inc., 69
P.3d 1011, 1014 (Ariz. Ct. App. 2003)).
Appellee contends that we may not address Kunz’s challenges to the district
court’s denial of certain motions because he did not file a timely notice of appeal
for those motions. However, because Kunz filed a timely notice of appeal from the
order granting summary judgment, he has filed a timely notice of appeal for the
Orders. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949);
Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 468 (9th Cir. 1989).
The district court did not abuse its discretion in denying Kunz’s Motions to
Add Witness and Motion for Defendant to Produce Requested Information because
the motions were filed after the close of discovery and no good cause was given for
their untimeliness. See Johnson, 975 F.2d at 607.
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The district court did not abuse its discretion in denying Kunz’s Motion for
Appointment of Counsel because the trial court correctly concluded that Kunz did
not show a likelihood of success on the merits and that the issues at trial were not
complex enough to show the exceptional circumstances necessary in order to
appoint counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
We reject the remainder of Kunz’s arguments for the reasons stated by the
district court. Kunz’s motion to remand is denied.
AFFIRMED.
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