Joan Jojola v. American Pacific Corp. ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 01 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAN M. JOJOLA; ELEANOR No. 14-17481
BARCELON; JAYANN JACKSON;
CATHRYN LUM, D.C. No.
2:14-cv-01492-JCM-GWF
Plaintiffs-Appellants,
v. MEMORANDUM*
AMERICAN PACIFIC CORPORATION;
JULIE BUCKMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 15, 2017**
San Francisco, California
Before: CANBY, SILER,*** and HURWITZ, Circuit Judges.
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Joan M. Jojola, Eleanor Barcelon, Jayann Jackson, and Cathryn Lum
(“Plaintiffs”) appeal the district court’s dismissal of their complaint for failure to
state a claim upon which relief can be granted. They argue that the district court
(1) erred by dismissing the complaint for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6), and (2) abused its discretion by granting the
defendants’ motion to dismiss prior to a scheduled Early Neutral Evaluation
(“ENE”) session. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly dismissed Plaintiffs’ federal employment
discrimination and Nevada state law claims. Plaintiffs’ complaint fails to state
claims for employment discrimination based on gender, race, and religion because
it lacks facts plausibly suggesting that Plaintiffs experienced “explicit or
constructive alterations in the terms or conditions of employment” due to their
status in a protected class. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752
(1998); see Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The complaint
also fails to set forth facts establishing plausible claims under Nevada state law for
intentional infliction of emotional distress and unjust enrichment. Nelson v. City of
Las Vegas, 665 P.2d 1141, 1145 (Nev. 1983) (listing elements of an intentional
infliction of emotional distress claim); Coury v. Robison, 976 P.2d 518, 521 (Nev.
1999) (unjust enrichment). Plaintiffs did not present to the district court
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independent claims for declaratory and injunctive relief. They cannot do so for the
first time on appeal. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1063 (9th Cir.
1996).
2. The district court did not abuse its discretion by dismissing Plaintiffs’
complaint before the scheduled ENE session. Neither this court’s case law nor the
District of Nevada’s local rules preclude a Nevada district court from ruling on a
dispositive motion prior to a scheduled ENE session. See D. Nev. Local Rule 16-6.
3. Plaintiffs argue that this court should consider the Nevada Department of
Employment, Training and Rehabilitation’s (DETR) decision awarding Jackson
unemployment benefits. See . The DETR’s decision is not part of the record on
appeal, as Plaintiffs failed to present it to the district court. Kirshner v. Uniden
Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988). And the DETR’s decision is
not relevant to the question whether the Plaintiffs’ complaint states a claim for
relief. See Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010). We therefore deny
Plaintiffs’ request for judicial notice.
AFFIRMED.
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