Curtis Phelps v. United States General Services , 469 F. App'x 548 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CURTIS PHELPS, No. 10-16161
Petitioner-Appellant, D.C. No. 3:07-cv-1055-JSW
v.
UNITED STATES GENERAL MEMORANDUM *
SERVICES AGENCY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Northern California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted September 14, 2011
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, Cleveland, sitting by designation.
Curtis Phelps appeals the order of the district court granting summary judgment
in favor of his employer, the United States General Services Administration (“GSA”),
in Phelps’s action alleging race and national origin discrimination under Title VII of
the Civil Rights Act of 1964, retaliation in violation of 42 U.S.C. § 2000e-3(a), and
age discrimination in violation of the Age Discrimination in Employment Act. We
affirm.
I.
The district court did not err in ruling that Phelps failed to establish a prima
facie case of race discrimination. Phelps presented no direct evidence of race
discrimination, Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), and failed
to meet his burden of making out a prima facie case using indirect evidence. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie
case of race discrimination, a plaintiff must show
(1) that the plaintiff belongs to a class of persons protected by
Title VII; (2) that the plaintiff performed his or her job
satisfactorily; (3) that the plaintiff suffered an adverse
employment action; and (4) that the plaintiff’s employer treated
the plaintiff differently than a similarly situated employee who
does not belong to the same protected class as the plaintiff.
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). A
number of the acts which he raises on appeal–excess scrutiny of his training request,
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a letter of counseling, and a memorandum putting him on notice of deficiencies in his
work performance–clearly do not qualify as adverse employment actions. While other
acts–a low performance evaluation, two charges of being absent without leave, and
the denial of a within-grade increase–may amount to adverse employment actions,
Phelps did not put forth evidence that other employees outside his protected class
were treated more favorably, a required element for stating a prima facie case of race
discrimination. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Even if Phelps had made out a prima facie case of racial discrimination as to these
acts, GSA offered legitimate non-discriminatory reasons for its actions, and Phelps
failed to prove these reasons were a pretext for discrimination. See McDonnell
Douglas, 411 U.S. at 802-04.
II.
The district court did not err in ruling that Phelps failed to make out a prima
facie case for retaliation. The following three elements must be met in order to make
out a prima facie case of retaliation: (1) “[Phelps] engaged in a protected activity;” (2)
GSA “subjected [him] to an adverse employment action;” and (3) “a causal link exists
between the protected activity and the adverse action.” Manatt v. Bank of America,
NA, 339 F.3d 792, 800 (9th Cir. 2003) (internal citation and quotation marks omitted).
He has produced no evidence of a causal link between his protected activities and any
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adverse actions by his employer. His use of the underlying complaints that form the
basis of this action do not support a claim of retaliation. The other two matters to
which he refers, prior EEO complaints and sexual advances by his supervisor, also do
not support a claim for retaliation. Phelps has failed to produce evidence which
supports a finding that there was a causal link between these activities and GSA’s
actions.
III.
Phelps does not make any arguments before this court regarding the hostile
work environment, age, or national origin discrimination claims he raised in his
opening brief. We have stated that we “review only issues [that] are argued
specifically and distinctly in a party’s opening brief.” Christian Legal Soc. Chapter
of Univ. of California v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (internal citation and
quotation marks omitted). Therefore, the above-mentioned claims are deemed
abandoned.
AFFIRMED.
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