Vincent De Luna v. Sunrise Hosp. & Med. Ctr. LLC ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT A. DE LUNA, No. 18-16680
Plaintiff-Appellant, D.C. No.
2:17-cv-01052-JAD-VCF
v.
SUNRISE HOSPITAL AND MEDICAL MEMORANDUM*
CENTER, LLC,
Defendant-Appellee.
On Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted March 5, 2020
San Francisco, California
Before: WARDLAW, M. SMITH, and BUMATAY, Circuit Judges.
Vincent De Luna appeals from the district court’s order granting summary
judgment on his race, age, and disability discrimination claims against his former
employer, Sunrise Hospital and Medical Center, LLC. De Luna also challenges
the denial of his motion for leave to file supplemental evidence under the local
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
rules. Because the parties are familiar with the relevant facts, we do not recount
them here. We review an order granting summary judgment de novo, Wallis v.
J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994), and an application of the
district court’s local rules for abuse of discretion, Guam Sasaki Corp. v. Diana’s
Inc., 881 F.2d 713, 715–16 (9th Cir. 1989). We affirm the district court’s order.
1. Summary judgment was proper on De Luna’s disability discrimination
claim. De Luna failed to present sufficient evidence that he was fired “on the
basis of disability”—rather than for his repeated and egregious violations of
Sunrise’s punctuality policy. 42 U.S.C. § 12112(a); see also Murray v. Mayo
Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019) (holding that a plaintiff must show
“but for” causation). Indeed, De Luna was tardy at least 24 times in his last 12
months of employment. Thus, he cannot show that his alleged disability was the
“but for” cause of his termination.
De Luna contends that Sunrise selectively enforced its punctuality policy
against him because of his disability. Yet De Luna adduced no evidence
demonstrating that Sunrise treated similarly situated, non-disabled employees
more favorably than him. Instead, he relies on the attendance records of an
employee whose tardiness was significantly less than De Luna’s. See Hawn v.
Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (explaining that
employees must be similarly situated “in all material respects”) (citation omitted).
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This leaves De Luna with nothing more than the conclusory statements in his
declaration alleging disparate treatment—which are insufficient to create a
genuine dispute of material fact. See Brown v. City of Tucson, 336 F.3d 1181,
1188 (9th Cir. 2003) (“Under Ninth Circuit law, circumstantial evidence of pretext
must be specific and substantial in order to survive summary judgment.”)
(emphasis added) (simplified).
2. De Luna’s failure-to-accommodate claim is equally without merit
because he offered insufficient evidence to show that he notified Sunrise of his
need for a disability-related accommodation. See Brown v. Lucky Stores, Inc., 246
F.3d 1182, 1188–89 (9th Cir. 2001) (holding that an employer generally has no
duty to provide an accommodation unless one is requested). De Luna’s threadbare
declaration is contradicted by the documentary evidence in the record, which
shows that De Luna failed to mention his disability each time he communicated
with Sunrise about his schedule or tardiness. In fact, De Luna consistently
admitted to Sunrise that his tardiness was caused by factors wholly unrelated to his
alleged disability, such as “traffic” and “difficulty sleeping from spreading
[him]self too thin.” On this record, De Luna’s conclusory declaration is at most a
mere “scintilla” of evidence, which is not enough to defeat summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
3. De Luna’s claims of race and age discrimination fare no better. De
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Luna’s repeated violations of Sunrise’s punctuality policy counter any suggestion
that he was performing satisfactorily and according to his employer’s legitimate
expectations. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th
Cir. 2008) (recognizing that age discrimination plaintiffs must show that they were
“performing [their] job satisfactorily”); Godwin v. Hunt Wesson, Inc., 150 F.3d
1217, 1220 (9th Cir. 1998) (recognizing that a prima facie case for race
discrimination must include a showing that the plaintiff was “performing according
to [the] employer’s legitimate expectations”).
4. Finally, the district court acted within its discretion to deny De Luna
leave to file a supplemental witness declaration after the completion of summary
judgment briefing. The district court’s local rules required De Luna to show “good
cause” for submitting such late evidence. See D. Nev. LR 7-2(g). He failed to do
so. Accordingly, the district court did not abuse its discretion in denying De
Luna’s motion for leave to file the supplemental declaration.
AFFIRMED.
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