Summary
In Carter, the Court reversed a summary judgment decision straying too far from a pretext-only spot. "Thus, to the extent prior case law suggests that to survive summary judgment a plaintiff must do more than sufficiently call into question the employer's proffered reasons for its employment decision,... it is no longer the law of this circuit in light of Reeves.
Summary of this case from Seaton v. PerdueOpinion
No. 15-56297
12-22-2016
FREDERICK J. KILLIAN, Plaintiff-Appellant, v. ASHTON B. CARTER, et al. Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 3:12-cv-00828-JLS-DHB MEMORANDUM Appeal from the United States District Court for the Southern District of California
Janis L. Sammartino, District Judge, Presiding Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Frederick J. Killian appeals pro se from the district court's summary judgment in his employment action alleging discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Cotton v. City of Alameda, 812 F.2d 1245, 1247 (9th Cir. 1987), and we affirm.
The district court properly granted summary judgment because Killian failed to raise a genuine dispute of material fact as to whether defendant's legitimate, non-discriminatory reason for declining to interview or hire him was pretext for discrimination on the basis of Killian's age. See France v. Johnson, 795 F.3d 1170, 1173-75 (9th Cir. 2015) (explaining burden shifting framework for analyzing an ADEA claim on summary judgment, and setting forth plaintiff's burden in raising a genuine dispute of material fact as to pretext); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284-85 (9th Cir. 2000) (concluding stray remarks by members of management and unwise business judgments were not sufficient to raise a genuine dispute of material fact as to whether defendant's proffered reasons were pretextual).
We reject as without merit Killian's contentions regarding the district court's failure to hold a trial and handling of discovery.
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).
Killian's request that the court vacate testimony, set forth in his opening brief, is denied.
Killian's scheduling request, filed on June 20, 2016, is denied as unnecessary.
AFFIRMED.