Norma McCauley v. Fry's Food & Drug Stores Inc. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMA O. McCAULEY, No. 19-17497
Plaintiff-Appellant, D.C. No. 2:18-cv-04116-DWL
v.
MEMORANDUM*
FRY’S FOOD & DRUG STORES
INCORPORATED, DBA Fry’s Marketplace;
JOE HARRISS, supervisor; UNKNOWN
PARTIES, named as Art, supervisor; named
as Dennis, supervisor,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Norma O. McCauley appeals pro se from the district court’s judgment
dismissing her employment action alleging federal discrimination and retaliation
*
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).
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Curtis v. Irwin Indus.,
Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). We affirm.
The district court properly dismissed McCauley’s claims alleging
discrimination or retaliation that occurred while she was at work because
McCauley failed to allege any acts that occurred within 300 days of filing her
charge with the Equal Employment Opportunity Commission. See 42 U.S.C.
§ 2000e-5(e)(1) (Title VII of the Civil Rights Act); 29 U.S.C. § 626(d)(1) (Age
Discrimination in Employment Act).
The district court properly dismissed McCauley’s claim for unlawful
discharge under the Americans with Disabilities Act (“ADA”) because McCauley
failed to allege facts sufficient to show that she had a disability and that she could
perform the essential functions of her job. See 42 U.S.C. §§ 12102(1)-(2) (defining
“disability”); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)
(setting forth elements of a discrimination claim under the ADA).
The district court did not abuse its discretion by dismissing McCauley’s
complaint without leave to amend because further amendment would be futile. See
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
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
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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