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 2020-09

Cedric Coe v. Robert Wilkie ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
SEP 15 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CEDRIC R. COE,                                  No. 18-56535
Plaintiff-Appellant,            D.C. No. 2:16-cv-08907-SVW-
MRW
v.
ROBERT WILKIE*,                                 MEMORANDUM**
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted September 8, 2020***
Before:      TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Cedric R. Coe appeals pro se from the district court’s summary judgment
and dismissal order in his employment action alleging discrimination and
retaliation under Title VII and the Age Discrimination in Employment Act
*
Robert Wilkie has been substituted for his predecessor, David J.
Shulkin, as Secretary of Veterans Affairs 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).
(“ADEA”). We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo.
Whitman v. Mineta,
    541 F.3d 929
    , 931 (9th Cir. 2008). We affirm.
The district court properly granted summary judgment on Coe’s age
discrimination and retaliation claims arising from the failure to promote him in
2015 because Coe failed to state a prima facie case of age discrimination or
retaliation. See France v. Johnson,
    795 F.3d 1170
    , 1174 (9th Cir. 2015), as
amended on reh’g (Oct. 14, 2015) (“[A]n average age difference of ten years or
more between the plaintiff and the replacements will be presumptively substantial,
whereas an age difference of less than ten years will be presumptively
insubstantial.”); Shelley v. Geren,
    666 F.3d 599
    , 608 (9th Cir. 2012) (setting forth
the elements of ADEA claim and the burden-shifting framework); Porter v. Cal.
Dep’t of Corr.,
    419 F.3d 885
    , 894 (9th Cir. 2005) (burden-shifting framework
applies to Title VII retaliation claims).
The district court properly dismissed Coe’s remaining claims because Coe
failed to allege facts sufficient to state a plausible claim for relief. See Ashcroft v.
Iqbal,
    556 U.S. 662
    , 678 (2009) (to avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” (citation and internal quotation marks omitted)); Vasquez v. County of
Los Angeles,
    349 F.3d 634
    , 642, 646 (9th Cir. 2003) (elements of hostile work
environment, harassment, and retaliation claims under Title VII); Leong v. Potter,
2                                      18-56535
    347 F.3d 1117
    , 1124 (9th Cir. 2003) (elements of discrimination claim under Title
VII).
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).
AFFIRMED.
3                                       18-56535