Kelvin Banks v. Ryan McCarthy , 699 F. App'x 639 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KELVIN BANKS; DAVID BEVETT, Nos. 14-16670
“Flying with Eagles”; MARCEAU DOZE- 14-16868
GUILLORY; TAMANEE MUNDY;
CHINY WANG, D.C. No.
1:11-cv-00798-LEK-KSC
Plaintiffs-Appellants,
v. MEMORANDUM*
RYAN D. MCCARTHY, Acting
Secretary, Department of the Army,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted August 14, 2017**
San Francisco, California
*
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).
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and WATTERS,***
District Judge.
Appellants Kelvin Banks (Banks), David “Flying With Eagles” Bevett
(Bevett), Marceau Doze-Guillory (Doze), Tamanee Mundy (Mundy), and Chiny
Wang (Wang) (Appellants)—current or former employees of the Tripler Army
Medical Center (Tripler) in Honolulu, Hawaii—challenge the district court’s
decisions granting summary judgment in favor of the Secretary of the Department
of the Army (Secretary) in their actions alleging discrimination, retaliation, and
hostile work environment under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–16 (Title VII).
On appeal, Appellants contend that (1) the International Convention on the
Elimination of All Forms of Racial Discrimination, entered into force January 4,
1969, 660 U.N.T.S. 195 (Treaty), preempted Title VII; (2) there were triable issues
of fact as to whether Appellants endured discrimination, retaliation, and/or a
hostile work environment at Tripler; and (3) the district court erred in severing
Wanda Thomas’s claims. We review summary judgment rulings de novo. See
First Resort, Inc. v. Herrera, 860 F.3d 1263, 1271 (9th Cir. 2017). We review
***
The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
2
decisions regarding severance for abuse of discretion. See Coughlin v. Rogers, 130
F.3d 1348, 1351 (9th Cir. 1997).
1. The provisions of the Treaty do not preempt Title VII. See Munoz v.
Mabus, 630 F.3d 856, 863 (9th Cir. 2010) (recognizing that Title VII “provides the
exclusive judicial remedy for claims of discrimination in federal employment”)
(citation and emphasis omitted); see also Sosa v. Alvarez-Machain, 542 U.S. 692,
735 (2004) (observing that non-self-executing treaties “d[o] not [] create
obligations enforceable in the federal courts”); 140 Cong. Rec. S7634-02, S7634,
1994 WL 282789 (1994) (“[P]rovisions of the [Treaty] are not self-executing.”).
2. No triable issues of fact existed as to whether Appellants endured
discrimination, retaliation, and/or a hostile work environment at Tripler. The
district court correctly determined that none of the Appellants established a prima
facie case. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686-87, 690-91,
693 (9th Cir. 2017) (discussing the standards for proving discrimination,
retaliation, and a hostile work environment under Title VII).
On appeal, none of the Appellants address the Title VII standards, or raise an
argument as to how the district court erred in applying Title VII. Accordingly, any
argument challenging the district court’s determination that Appellants failed to
make a prima facie case under Title VII is waived. See Japanese Vill., LLC v. Fed.
3
Transit Admin., 843 F.3d 445, 455 (9th Cir. 2016).
3. The district court articulated germane reasons for severing Wanda
Thomas’s claims. See Coughlin, 130 F.3d at 1351 (recognizing the district court’s
discretion to sever a party); see also Fed. R. Civ. P. 21.1 As the district court
noted, the dates of the alleged conduct concerning Thomas’s claim fell outside the
“time period common to the other Plaintiffs” and she was not part of the medical
staff.
AFFIRMED.
1
Rule 21 provides in pertinent part:
On motion or on its own, the court may at any time, on just terms, add
or drop a party. The court may also sever any claim against a party.
4