Tamble Taylor v. Lowe's Corporation ( 2021 )

FILED
NOT FOR PUBLICATION
JUL 8 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMBLE TAYLOR, No. 20-35345
Plaintiff-Appellant, D.C. No. 3:18-cv-05622-RJB
v.
MEMORANDUM*
LOWE’S CORPORATION, a North
Carolina Corporation, doing business in
Washington,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted July 6, 2021**
Seattle, Washington
Before: HAWKINS, CLIFTON, and IKUTA, Circuit Judges.
*
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).
Tamble Taylor appeals the district court’s order granting summary judgment
in favor of Lowe’s Corporation. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm in part and dismiss in part.
Lowe’s is entitled to summary judgment on Taylor’s claims that Lowe’s
discriminated against him on the basis of race and age under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 623(a)(1); and the Washington Law
Against Discrimination (WLAD), Wash. Rev. Code § 49.60.180(2), in terminating
his employment. Even assuming Taylor established a prima facie case of
discrimination, Lowe’s proffered a legitimate, nondiscriminatory reason for firing
him: he committed a Class A violation of company policy. See Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Taylor has not pointed to
“specific and substantial” circumstantial evidence raising a genuine issue of
material fact that this proffered reason is pretext for discrimination. Brown v. City
of Tucson, 336 F.3d 1181, 1188 (9th Cir. 2003) (cleaned up).
Lowe’s is entitled to summary judgment on Taylor’s claim for wrongful
discharge in violation of public policy (WDVPP). See Rose v. Anderson Hay &
Grain Co., 358 P.3d 1139, 1143 (Wash. 2015). Taylor stated in his deposition that
he did not make a complaint to Lowe’s regarding its failure to interview him for a
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delivery manager position; nor did he complain that this failure was due to
discrimination on the basis of race or age. Accordingly, even assuming the
WDVPP claim is not waived, Taylor failed to raise a genuine issue of material fact
that his making a report of discrimination was a significant factor in Lowe’s
decision to terminate him. See Martin v. Gonzaga Univ., 425 P.3d 837, 844
(Wash. 2018).
Lowe’s is entitled to summary judgment on Taylor’s race and age
discrimination claim under Title VII, the ADEA, and the WLAD, concerning
Lowe’s decision not to hire him as a delivery manager. Even assuming Taylor
included this claim in his federal complaint and did not waive it, Taylor’s Title VII
and ADEA claims are unexhausted, because Taylor did not mention these claims in
his Washington State Human Rights Commission (WSHRC) complaint, and thus
did not mention them in his Equal Employment Opportunity Commission
complaint, Sanchez v. Pac. Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998),
which was necessary for purposes of exhaustion, B.K.B. v. Maui Police Dep’t, 276
F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002); 29 U.S.C.
§ 626(d)(1)(B); 42 U.S.C. § 2000e-5(e)(1). Any WLAD claim was untimely,
because Taylor filed his federal complaint in August 2018, more than three years
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after Lowe’s failed to interview him for the delivery manager position in July
2015. See Wash. Rev. Code § 4.16.080(2).
Lowe’s is entitled to summary judgment on Taylor’s retaliation claim
because, even assuming Taylor included this claim in his federal complaint, Taylor
failed to raise it in his WSHRC complaint, and thus failed to exhaust it. 42 U.S.C.
§ 2000e-5(e)(1); 29 U.S.C.§ 626(d)(1); Sanchez, 147 F.3d at 1099.
The remaining claims raised in Taylor’s opening brief on appeal were not
raised to the district court and rely on evidence that was not before the district
court. We dismiss these waived claims.1
AFFIRMED IN PART, DISMISSED IN PART.2
1
We remind Taylor’s counsel that, “save in unusual circumstances, we
consider only the district court record on appeal.” Lowry v. Barnhart, 329 F.3d
1019, 1024 (9th Cir. 2003) (cleaned up); see also Fed. R. App. P. 10(a).
2
Taylor’s Request for the Court to Take Judicial Notice, Dkt. No. 19, is
GRANTED.
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