Van Pelt v. Nevada Ex Rel. Nevada Department of Corrections , 637 F. App'x 307 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLA VAN PELT, No. 13-15906
Plaintiff - Appellant, D.C. No. 3:11-cv-00061-HDM-
VPC
v.
STATE OF NEVADA, EX REL. MEMORANDUM*
NEVADA DEPARTMENT OF
CORRECTIONS,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Submitted February 9, 2016**
San Francisco, California
Before: HAWKINS, W. FLETCHER, and MURGUIA, Circuit Judges.
*
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).
Plaintiff Carla Van Pelt (“Van Pelt”) appeals the summary judgment grant to
defendant State of Nevada ex rel. Department of Corrections (“NDOC”) on her Title
VII claim of disparate treatment gender discrimination. We affirm.
A plaintiff alleging disparate treatment under Title VII must first establish a
prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981). A prima facie case is established for plaintiffs who can “show
that: (1) they belonged to a protected class; (2) they were qualified for their jobs; (3)
they were subjected to an adverse employment action; and (4) similarly situated
employees not in their protected class received more favorable treatment.” Moran v.
Selig, 447 F.3d 748, 753 (9th Cir. 2006). Van Pelt was terminated for chronically
being late to work and/or leaving early, and then falsifying logbooks and timesheets
to show she had worked longer hours than she actually did.
The district court properly found that Van Pelt failed to carry her burden at the
fourth prong because she failed to identify any male employees who committed
similar transgressions but were not fired. See Vasquez v. County of Los Angeles, 349
F.3d 634, 641 (9th Cir. 2003) (no inference of discrimination where employees not
similarly situated and the type and severity of alleged offense dissimilar); see also
Hawn v. Exec. Jet Mgmt., 615 F.3d 1151, 1156-58 (9th Cir. 2010).
2
Van Pelt waiver her argument that she established disparate treatment with
direct evidence of discrimination, because she failed to present that argument to the
district court. See Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir.
2006) (“Issues not presented to a district court generally cannot be heard on appeal.”).
Although Van Pelt survived summary judgment on her Title VII retaliation claim, she
stipulated to dismiss this claim with prejudice prior to trial, along with “any other First
Amendment claim that can be read as asserted” in her complaint, and “any claim of
hostile work environment/sexual harassment.” Accordingly, no other claims
mentioned in her opening brief are properly before us.
AFFIRMED.
3