Hubbard v. Washington Department of Corrections , 695 F. App'x 301 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMANTHA HUBBARD, Pro-Se, No. 16-35075
Plaintiff-Appellant, D.C. No. 3:13-cv-05982-RJB
v.
MEMORANDUM*
STATE OF WASHINGTON
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Samantha Hubbard appeals pro se from the district court’s summary
judgment in her employment action alleging violations of Title VII and due
process. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Mayes v. WinCo Holder, Inc., 846 F.3d 1274, 1277 (9th Cir. 2017). We affirm.
*
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).
The district court properly granted summary judgment on Hubbard’s Title
VII racial discrimination claim because Hubbard failed to raise a genuine dispute
of material fact as to whether she was performing according to her employer’s
expectations and that similarly situated employees outside her protected class were
treated more favorably, or whether her employer’s legitimate, non-discriminatory
reasons for its actions were pretextual. See Vasquez v. County of Los Angeles, 349
F.3d 634, 640-41 (9th Cir. 2004) (setting forth prima facie case of discrimination
and burden shifting requirements under Title VII).
The district court properly granted summary judgment on Hubbard’s Title
VII retaliation claim because Hubbard failed to raise a genuine dispute of material
fact as to whether there was a causal link between her protected activity and her
termination in 2012. See Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir.
2004) (setting forth prima facie case of retaliation); see also Manatt v. Bank of
Am., 339 F.3d 792, 802 (9th Cir. 2003) (nine month gap between protected activity
and adverse employment decision not evidence of causation).
The district court properly granted summary judgment on Hubbard’s due
process claim because Hubbard failed to raise a genuine dispute of material fact as
to whether the grievance procedures set out in the collective bargaining agreement
failed to satisfy due process. See Armstrong v. Meyers, 964 F.3d 948, 950 (9th Cir.
1992) (explaining that a public employer may meet its due process obligations by
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providing a collective bargaining agreement that contains grievance procedures
and explaining requirements for due process); see also MAI Sys. Corp. v. Peak
Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (“A party opposing a properly
supported motion for summary judgment may not rest upon the mere allegations or
denials in pleadings, but must set forth specific facts showing that there is a
genuine issue for trial.” (citation and internal quotations omitted)).
We reject Hubbard’s contentions that the Union representative violated the
collective bargaining agreement.
To the extent Hubbard raised claims alleging violations of the collective
bargaining agreement apart from her due process contentions, dismissal was proper
because Hubbard failed to allege facts sufficient to state any plausible claim for
relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (though pro se
pleadings are to be liberally construed, a plaintiff must still present factual
allegations sufficient to state a plausible claim for relief).
The district court did not abuse its discretion in denying Hubbard’s motion
to appoint counsel. See Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301,
1318 (9th Cir. 1981) (setting forth standard of review and the three factors relevant
to the exercise of the district court’s discretion).
The district court did not abuse its discretion in denying Hubbard’s motion
for oral argument on defendant’s motion for summary judgment. See W.D. Wash.
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R. 7(b)(4) (“Unless otherwise ordered by the court, all motions will be decided by
the court without oral argument.”); Spradlin v. Lear Siegler Mgmt. Servs. Co., 926
F.2d 865, 867 (9th Cir. 1991) (standard of review).
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); see also
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
AFFIRMED.
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