Michael McDermott v. Rebecca Blank , 651 F. App'x 590 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL JAMES McDERMOTT, No. 14-35022
Plaintiff - Appellant, D.C. No. 2:12-cv-02042-MJP
v.
MEMORANDUM**
PENNY PRITZKER,* Secretary of
Commerce; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted May 24, 2016***
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Michael James McDermott appeals pro se from the district court’s summary
judgment in his employment discrimination action. We have jurisdiction under 28
*
Penny Pritzker has been substituted for her predecessor, Rebecca
Blanks, as Secretary of Commerce 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. Accordingly, McDermott’s request for oral argument, set
forth in his opening brief, is denied. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo. Szajer v. City of Los Angeles, 632 F.3d 607,
610 (9th Cir. 2011). We affirm.
The district court properly dismissed McDermott’s Bivens claim because
“the [Civil Service Reform Act] preempts Bivens actions and other suits for
constitutional violations arising from governmental personnel actions.” Russell v.
U.S. Dep’t of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999).
The district court properly dismissed McDermott’s retaliation claim under
the Occupational Safety and Health Act (“OSHA”) because McDermott never
alleged that any adverse action was taken against him on the basis of a safety
complaint. See 29 C.F.R. § 1977.12 (noting that OSHA “protects employees from
discrimination occurring because of the exercise of any right afforded by this
Act.”).
The district court properly dismissed McDermott’s Title VII claims against
defendants other than the Secretary of Commerce because the only appropriate
defendant in a Title VII action brought by a federal employee is the head of the
department or agency in his or her official capacity. See Romain v. Shear, 799
F.2d 1416, 1418 (9th Cir. 1986) (interpreting 42 U.S.C. § 2000e-16).
The district court properly granted summary judgment on McDermott’s Title
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VII disparate treatment claim because McDermott failed to raise a genuine dispute
of material fact as to whether a similarly situated individual outside of his
protected class was treated more favorably. See Hawn v. Exec. Jet Mgmt., Inc.,
615 F.3d 1151, 1156 (9th Cir. 2010) (setting forth elements).
The district court properly granted summary judgment on McDermott’s Title
VII retaliation claim because defendants articulated legitimate, nondiscriminatory
reasons for termination, and McDermott failed to raise a genuine dispute of
material fact as to whether these reasons were pretextual. See Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (setting forth elements
and analysis).
The district court properly granted summary judgment on McDermott’s Title
VII hostile work environment claim because McDermott failed to raise a genuine
dispute of material fact as to whether he was subjected to harassment on account of
his sex, or that any harassment was sufficiently severe and pervasive to create an
objectively hostile work environment. See Dawson v. Entek Int’l, 630 F.3d 928,
937-38 (9th Cir. 2011) (setting forth elements).
The district court did not abuse its discretion by declining to exercise
jurisdiction over McDermott’s declaratory judgment claim. See Principal Life Ins.
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Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005) (setting forth factors guiding
district court’s exercise of discretion).
AFFIRMED.
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