Kuang-Bao Ou-Young v. John Potter , 479 F. App'x 77 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KUANG-BAO P. OU-YOUNG, No. 11-16653
Plaintiff - Appellant, D.C. No. 5:10-cv-00464-RS
v.
MEMORANDUM *
JOHN E. POTTER, in his official capacity
as Postmaster General, United States
Postal Service,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Kuang-Bao P. Ou-Young appeals pro se from the district court’s judgment
in his Title VII action alleging claims for employment discrimination, retaliation,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and hostile work environment based on his race. We have jurisdiction under 28
U.S.C. § 1291. We review de novo summary judgment, Vazquez v. County of Los
Angeles, 349 F.3d 634, 639 (9th Cir. 2004), and for an abuse of discretion the
dismissal of an action for failure to prosecute, Al-Torki v. Kaempen, 78 F.3d 1381,
1384 (9th Cir. 1996). We affirm.
The district court properly granted summary judgment on Ou-Young’s
employment discrimination and retaliation claims because Ou-Young failed to
raise a genuine dispute of material fact as to whether he was treated less favorably
than a similarly situated employee or whether defendant’s proffered reason for
taking adverse employment action against him was pretextual. See Vazquez, 349
F.3d at 640-42, 644-47 (setting forth elements of prima facie employment
discrimination and retaliation claims under Title VII).
The district court did not abuse its discretion in alternatively dismissing the
action for failure to prosecute because Ou-Young repeatedly refused to respond to
written discovery, attend his deposition, submit a substantive opposition to
summary judgment, or otherwise participate in the litigation despite being warned
about the consequences of his actions. See Al-Torki, 78 F.3d at 1384-85 (listing
factors for dismissal, including willful, inexcusable failure to prosecute).
Ou-Young waived his right to appeal the earlier dismissal of his hostile
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work environment and other non-Title VII claims because Ou-Young’s intentional
failure to prosecute the action rendered that decision non-appealable. See id. at
1386 (willful failure to prosecute forfeits a litigant’s right to appeal interlocutory
orders before final judgment that would otherwise be appealable).
We do not consider issues Ou-Young raises for the first time on appeal. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Ou-Young’s remaining contentions are unpersuasive.
AFFIRMED.
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