Gary Martinez v. Richard Spencer ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY J. MARTINEZ, No. 18-15660
Plaintiff-Appellant, D.C. No. 1:16-cv-00475-HG-RLP
v.
MEMORANDUM*
RICHARD V. SPENCER, Secretary of the
Navy; JAMIE K. KALOWSKY, CMDR,
Captain Pearl Harbor Navy Shipyard and
Intermediate Maintenance Facility,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Gary J. Martinez appeals pro se from the district court’s summary judgment
and dismissal order in his employment action alleging claims arising from
defendants’ alleged failure to accommodate his disability. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo. Surrell v. Cal. Water Serv. Co., 518
F.3d 1097, 1103 (9th Cir. 2008) (summary judgment); Cervantes v. United States,
330 F.3d 1186, 1187 (9th Cir. 2003) (motion to dismiss). We affirm.
The district court properly dismissed Martinez’s Title VII claim against
defendant Kalowsky because there is no individual liability under Title VII. See
Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993).
The district court properly granted summary judgment on Martinez’s hostile
work environment claim because Martinez failed to raise a genuine dispute of
material fact as to whether the alleged conduct was sufficiently severe or pervasive
to alter the conditions of his employment and create an abusive work environment.
See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004) (setting
forth elements of a hostile work environment claim under Title VII).
The district court properly granted summary judgment on Martinez’s
Rehabilitation Act claim because Martinez failed to raise a genuine dispute of
material fact as to whether Martinez was a qualified individual able to perform the
essential functions of his job as a painter helper. See 42 U.S.C. § 12111(8)
(defining qualified individual); Samper v. Providence St. Vincent Med. Ctr., 675
F.3d 1233, 1237 (9th Cir. 2012) (setting forth requirements for a failure-to-
accommodate claim); see also Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d
879, 884 (9th Cir. 2004) (Rehabilitation Act and Americans with Disabilities Act
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claims evaluated by the same standards).
The district court properly granted summary judgment on Martinez’s
Privacy Act claim because he failed to raise a genuine dispute of material fact as to
whether Martinez suffered actual damages for purposes of the Privacy Act. See
FAA v. Cooper, 566 U.S. 284, 299 (2012) (limiting Privacy Act suits to actual
damages, which the Court defined as proven pecuniary or economic harm).
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).
Martinez’s motion to review the entire judicial record (Docket Entry No. 17)
is denied as unnecessary.
AFFIRMED.
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