Lorcan Kilroy v. Lausd Board of Education ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORCAN KILROY, No. 16-56484
Plaintiff-Appellant, D.C. No.
2:13-cv-06373-DMG-FFM
v.
LOS ANGELES UNIFIED SCHOOL MEMORANDUM*
DISTRICT BOARD OF EDUCATION; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted March 27, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Lorcan Kilroy appeals pro se from the district court’s summary judgment in
his employment action against Los Angeles Unified School District Board of
Education alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review the district court’s summary judgment de novo, T.B. ex rel. Brenneise
v. San Diego Unified Sch. Dist., 806 F.3d 451, 466 (9th Cir. 2015), and we affirm.
The district court properly granted summary judgment on Kilroy’s claims of
retaliation in violation of Title II of the Americans with Disabilities Act and § 504
of the Rehabilitation Act because he failed to raise a genuine issue of material fact
regarding causation or pretext. See Curley v. City of N. Las Vegas, 772 F.3d 629,
632 (9th Cir. 2014) (holding that if defendant establishes legitimate, non-
retaliatory reason for adverse action, then plaintiff must show pretext). Contrary to
Kilroy’s contention, the district court applied the correct causation standard. See
Brenneise, 806 F.3d at 473 (holding that but-for standard applies in determining
whether plaintiff has established causal link between protected activity and adverse
action).
The district court properly exercised its discretion in its rulings regarding
evidence of discipline imposed on other teachers. See ABS Entm’t, Inc. v. CBS
Corp., 908 F.3d 405, 413 (9th Cir. 2018) (stating standard of review). The
evidence was hearsay, and any error in the district court’s refusal to consider it on
summary judgment was harmless because the evidence did not support Kilroy’s
showing of causation or pretext. See Fed. R. Evid. 801(c) (defining hearsay);
Aguilera v. Baca, 510 F.3d 1161, 1174 (9th Cir. 2007) (defining harmless error).
The district court properly exercised its discretion in denying Kilroy’s
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untimely motion for judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899
F.3d 988, 998 (9th Cir. 2018), petition for cert. filed (U.S. Jan. 31, 2019) (No. 18-
1010).
The district court properly exercised its discretion in denying Kilroy’s
motion to compel responses to a subpoena served on a non-party. See Mueller v.
Auker, 700 F.3d 1180, 1194 (9th Cir. 2012) (stating standard of review).
We reject as unsupported by the record Kilroy’s contention that the district
court failed to conduct a de novo review of the magistrate judge’s reports and
recommendations, as required by Federal Rule of Civil Procedure 72(b)(3) and 28
U.S.C. § 636(b)(1). See Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. 2005).
The district court properly exercised its discretion in denying Kilroy leave to
file a third amended complaint to include new claims and new defendants
concerning events that occurred while this action was pending. See Hoang v. Bank
of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018) (stating standard of review); In
re Tracht Gut, LLC, 836 F.3d 1146, 1152 (9th Cir. 2016) (setting forth factors that
district court should consider in determining whether to permit leave to amend).
In light of the district court’s entry of final judgment, issues regarding
preliminary injunctive relief and the certification of issues for appeal under 28
U.S.C. § 1292(b) are moot.
All pending motions are denied.
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AFFIRMED.
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