Curtis Philbert v. Denis McDonough ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS W. PHILBERT, No. 19-56396
Plaintiff-Appellant, D.C. No. 5:17-cv-00929-CAS-KK
v.
MEMORANDUM*
DENIS McDONOUGH, Secretary of
Veterans Affairs,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Curtis W. Philbert appeals pro se from the district court’s summary
judgment in his employment action alleging federal claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Dep’t of Fair Emp’t & Hous. v.
Lucent Techs., Inc., 642 F.3d 728, 736 (9th Cir. 2011). We affirm.
*
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).
The district court properly granted summary judgment on Philbert’s
Title VII national origin discrimination, sex discrimination, and retaliation claims
because Philbert failed to raise a genuine dispute of material fact as to whether the
Department of Veterans Affairs’ (“VA”) legitimate, nondiscriminatory, and
nonretaliatory reasons for not promoting him or reclassifying his position were
pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-
59 (9th Cir. 2002) (setting forth burden-shifting framework for Title VII
discrimination claim; circumstantial evidence of pretext for discrimination claim
must be specific and substantial); see also Stegall v. Citadel Broad. Co., 350 F.3d
1061, 1065-66 (9th Cir. 2004) (burden-shifting framework applies to Title VII
retaliation claim; circumstantial evidence of pretext for retaliation claim must be
specific and substantial).
The district court properly granted summary judgment on Philbert’s
Title VII wage discrimination claim. The VA presented evidence that Philbert did
not apply for a promotion and his position did not qualify for reclassification, and
Philbert failed to present evidence to the contrary. See Maxwell v. City of Tucson,
803 F.2d 444, 446 (9th Cir. 1986) (“When a Title VII [plaintiff] contends that [he]
has been denied equal pay for substantially equal work, . . . Equal Pay Act
[(‘EPA’)] standards apply.”); see also Rizo v. Yovino, 950 F.3d 1217, 1222 (9th
Cir. 2020) (setting forth EPA’s four exceptions for wage differential, which
2 19-56396
operate as affirmative defenses).
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 19-56396