Essie McDaniel v. David J. Shulkin ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESSIE McDANIEL, No. 18-15256
Plaintiff-Appellant, D.C. No. 2:15-cv-00003-JAD-PAL
v.
MEMORANDUM**
ROBERT WILKIE*, Secretary,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted September 12, 2018***
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Essie McDaniel appeals pro se from the district court’s summary judgment
in her employment action alleging retaliation in violation of Title VII. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Trunk v. City of San
*
Robert Wilkie has been substituted for his predecessor, David J.
Shulkin, 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).
Diego, 629 F.3d 1099, 1105 (9th Cir. 2011). We may affirm on any basis
supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008), and we affirm.
Summary judgment on McDaniel’s retaliation claim was proper because
McDaniel failed to raise a genuine dispute of material fact as to whether
defendant’s legitimate, non-retaliatory reason for not hiring McDaniel was
pretextual. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276,
1284 (9th Cir. 2001) (explaining burden-shifting framework for Title VII
retaliation claims and requirements for establishing pretext); see also Little v.
Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002) (a plaintiff must
offer “specific, substantial evidence of pretext” (citation and internal quotation
marks omitted)).
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).
AFFIRMED.
2 18-15256