Diane Dorn-Kerri v. Southwest Cancer Care , 385 F. App'x 643 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DIANE DORN-KERRI, No. 09-55066
Plaintiff - Appellant, D.C. No. 3:06-cv-01754-NLS
v.
MEMORANDUM *
SOUTHWEST CANCER CARE,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Nita L. Stormes, Magistrate Judge, Presiding **
Submitted May 25, 2010 ***
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, appellant’s
request for oral argument is denied.
Diane Dorn-Kerri appeals pro se from the district court’s summary judgment
in her action alleging employment discrimination and retaliation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Leong v. Potter, 347
F.3d 1117, 1123 (9th Cir. 2003). We may affirm on any ground supported by the
record, McSherry v. City of Long Beach, 584 F.3d 1129, 1135 (9th Cir. 2009), and
we affirm.
The district court properly granted summary judgment on the race
discrimination claim because Dorn-Kerri failed to raise a triable issue as to whether
defendant’s legitimate, nondiscriminatory reasons for terminating her were pretext
for discrimination. See Leong, 347 F.3d at 1124-25.
The district court properly granted summary judgment on the hostile work
environment claim because Dorn-Kerri failed to raise a triable issue as to whether
her supervisors’ conduct was based on her race or was sufficiently severe or
pervasive to alter the conditions of her employment. See Surrell v. Cal. Water
Serv. Co., 518 F.3d 1097, 1108-09 (9th Cir. 2008).
Summary judgment was proper on the Title VII retaliation claim regarding
alleged unlawful billing practices because Title VII does not cover billing
practices. See Learned v. City of Bellevue, 860 F.2d 928, 932-33 (9th Cir. 1988)
(affirming summary judgment for employer on Title VII retaliation claim where
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plaintiff did not complain about conduct prohibited by Title VII). To the extent
Dorn-Kerri alleged a claim for retaliation under the False Claims Act (“FCA”)
regarding alleged unlawful billing practices, summary judgment was proper
because she failed to raise a triable issue as to whether she was engaged in
protected activity under the FCA and whether defendant terminated her because of
protected conduct. See United States ex rel Hopper v. Anton, 91 F.3d 1261, 1269-
70 (9th Cir. 1996) (listing elements of a prima facie case of retaliation under the
FCA and concluding that employer was entitled to judgment as a matter of law on
retaliation claim where plaintiff was not engaged in protected activity under the
FCA).
We do not consider Dorn-Kerri’s claim that she was retaliated against for
complaining to the California Department of Fair Employment and Housing and
the Equal Employment Opportunity Commission because it was not adequately
raised in the district court. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1111
n.2 (9th Cir. 2001).
The district court did not abuse its discretion by denying Dorn-Kerri’s
motion to compel discovery because defendant established that the information
sought was not in its possession, custody, or control. See Fed. R. Civ. P. 34(a)
(allowing discovery of information or documents in the responding party’s
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possession, custody, or control); cf. Dunn v. Trans World Airlines, Inc., 589 F.2d
408, 415 (9th Cir. 1978) (concluding that the district court did not abuse its
discretion by not imposing sanctions for party’s failure to produce records that no
longer existed).
The district court did not abuse its discretion by denying Dorn-Kerri’s
request for appointment of counsel. See Johnson v. U.S. Treasury Dep’t, 27 F.3d
415, 416-17 (9th Cir. 1994) (per curiam).
In light of our May 29, 2009 order denying appointment of counsel and
stating that no motions for reconsideration shall be filed or entertained, we do not
consider Dorn-Kerri’s request for appointment of counsel on appeal.
Dorn-Kerri’s remaining contentions are unpersuasive.
AFFIRMED.
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