Carmen Matthews v. Robert McDonald , 698 F. App'x 550 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
1
CARMEN MATTHEWS, No. 16-55066
Plaintiff-Appellant, D.C. No. 3:14-cv-01340-MMA-
BLM
v.
MEMORANDUM**
DAVID J. SHULKIN,* Secretary,
Department of Veterans Affairs; ROES, 1
through 20, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 26, 2017***
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Carmen Matthews appeals pro se from the district court’s summary
*
David J. Shulkin has been substituted for his predecessor, Robert
McDonald, as Secretary of Veterans Affairs under Fed. R. App. P. 43(c)(2).
**
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).
judgment in her employment action. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636
(9th Cir. 2002). We may affirm on any ground supported by the record. Keyser v.
Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir. 2001). We affirm.
The district court properly granted summary judgment on Matthews’ Title
VII claims because Matthews failed to raise a genuine dispute of material fact as to
whether her claims were encompassed by her EEOC complaints or whether she
administratively exhausted her claims prior to March 28, 2011. See B.K.B. v. Maui
Police Dep’t, 276 F.3d 1091, 1099-1100 (9th Cir. 2002) (to be considered
administratively exhausted, claim must fall within the administrative charge or be
reasonably expected to be related to the charge); Lyons v. England, 307 F.3d 1092,
1104-05 (9th Cir. 2002) (in order to administratively exhaust Title VII claims,
federal employees must consult an EEOC counselor within 45 days of the date of
the matter alleged).
Even assuming that Matthews administratively exhausted her Title VII
claims, the district court properly granted summary judgment because Matthews
failed to raise a genuine dispute of material fact as to whether she was subjected to
harassment, discrimination, or retaliation. See Fonseca v. Sysco Food Servs. of
Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004) (plaintiff must demonstrate an
adverse employment action to demonstrate discrimination); Vasquez v. County of
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Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003) (to demonstrate a hostile work
environment, plaintiff must establish that the conduct was sufficiently severe or
pervasive to alter the conditions of employment and create an abusive work
environment); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062, 1064 (9th
Cir. 2002) (setting forth the elements of a Title VII discriminatory termination or
retaliation claim and the burden-shifting framework, and noting that circumstantial
evidence of pretext must be specific and substantial).
The district court properly granted summary judgment on Matthews’
Rehabilitation Act claims because Matthews failed to raise a genuine dispute of
material fact as to whether she was terminated “because of” her disability, and
whether defendant failed to provide reasonable accommodations in response to a
proper request. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir.
2007) (prima facie case of disability discrimination requires showing that plaintiff
was fired “because of” disability); Vinson v. Thomas, 288 F.3d 1145, 1153 (9th
Cir. 2002) (agency may require reasonable evidence of disability before providing
accommodations).
The district court properly granted summary judgment on Matthews’ 42
U.S.C. §§ 1981 and 1983, Fourteenth Amendment, Cal. Gov’t Code § 12940, and
tort claims because Title VII is Matthews’ exclusive remedy as a former federal
employee and the Americans with Disabilities Act (“ADA”) does not encompass
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the federal government. See 42 U.S.C. § 12111(5)(B)(i) (excluding the United
States from the definition of “employer” under the ADA); Nolan v. Cleland, 686
F.2d 806, 814-15 (9th Cir. 1982) (Title VII is the exclusive remedy for federal
employees if the additional claims arise from the same factual predicate as the Title
VII claim).
The district court did not abuse its discretion in granting in part defendants’
motion to strike Matthews’ handwritten notes and unauthenticated deposition
transcripts from the evidentiary record on summary judgment. See El Pollo Loco,
Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (standard of review on motion
to strike).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
AFFIRMED.
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