Bobby Sanders v. Anthony Fox , 644 F. App'x 781 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 17 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY SANDERS, No. 13-17242
Plaintiff - Appellant, D.C. No. 5:11-cv-04391-EJD
v.
MEMORANDUM*
ANTHONY FOXX, Secretary, United
States Department of Transportation,
Agency,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted March 15, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Bobby Sanders appeals the district court’s grant of summary judgment in
favor of the government in his suit alleging race and gender discrimination,
*
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).
disparate treatment, and retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq, and age discrimination and disparate treatment in
violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621
et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s grant of summary judgement. Pavoni v. Chrysler Grp., LLC, 789
F.3d 1095, 1098 (9th Cir. 2015). We affirm.
As a threshold matter, we conclude that, because Sanders contacted an Equal
Employment Opportunity (“EEO”) Counselor within 45 days of learning that his
employment would not be extended, he appropriately exhausted his administrative
remedies. 29 C.F.R. § 1614.105(a)(1). Thus, he can rely on acts occurring more
than 45 days before he contacted the EEO Counselor “as background evidence in
support of [his] timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002).
To survive summary judgment on his claims of race-, gender- and age-based
discrimination, Sanders must raise a genuine issue of material fact as to whether
“(1) he is a member of a protected class; (2) he was qualified for his position; (3)
he experienced an adverse employment action; and (4) similarly situated
individuals outside his protected class were treated more favorably, or other
circumstances surrounding the adverse employment action give rise to an inference
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of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.
2004). Evidence as to more favorable treatment of similarly situated individuals is
lacking. Sanders relies on his own affidavit to establish discriminatory treatment,
and such “conclusory allegations of alleged discrimination . . . will not bar
summary judgment.” Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1419
(9th Cir. 1988).
To avoid summary judgment on his claim of retaliation, Sanders must raise a
genuine issue of material fact as to whether: (1) he engaged in a protected activity;
(2) he suffered an adverse employment action; and (3) there was a causal link
between the protected activity and the adverse employment action. Porter v. Cal.
Dept. of Corr., 419 F.3d 885, 894 (9th Cir. 2004). Here, Sanders engaged in a
protected activity by filing an EEO claim in 2004. See Brooks v. City of San Mateo,
229 F.3d 917, 928 (9th Cir. 2000) (“Asserting one’s civil rights . . . is a protected
activity under Title VII.”). He suffered an adverse employment action when the
FAA declined to extend his initial five-year appointment upon its expiration in
2008. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (“[A]n
adverse employment action is one that materially affects the compensation, terms,
conditions or privileges of employment.”) (internal quotations, alterations, and
citations omitted). Sanders has not, however, raised a genuine issue of material fact
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as to a causal link between the adverse employment action in 2008 and the
protected activity in 2004. Sanders puts forth scant evidence, including allegations
that one of his instructors told him management expected him to fail, that his
supervisors knew he had filed an EEO complaint, and that he was evaluated by two
trainers instead of one. This evidence is insufficient to raise a genuine issue of
material fact as to whether there was a “pattern of antagonism following the
protected conduct” capable of “giv[ing] rise to the inference” of causation. Porter,
419 F.3d at 895 (internal quotations and citations omitted).
AFFIRMED.
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