Nathaniel Hosea v. Michael Donley , 584 F. App'x 608 ( 2014 )

FILED
NOT FOR PUBLICATION AUG 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHANIEL HOSEA, No. 13-15138
Plaintiff - Appellant, D.C. No. 5:11-cv-02892-EJD
v.
MEMORANDUM*
MICHAEL B. DONLEY, Secretary of the
US Air Force,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted August 12, 2014**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Nathaniel Hosea appeals the district court’s grant of summary judgment in
favor of the Air Force in his employment action based on discrimination,
retaliation, and hostile work environment. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291, and we affirm. Because the parties are familiar with the history of the
case, we need not recount it here.
I
We review de novo a district court’s decision to grant summary judgment.
Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
A
Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1).
The plaintiff must first establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “Specifically, the
plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for
the position; (3) he was subject to an adverse employment action; and (4) similarly
situated individuals outside his protected class were treated more favorably.”
Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000).
If the plaintiff can establish a prima facie case, the burden “then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for the
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challenged action. If the employer does so, the plaintiff must show that the
articulated reason is pretextual.” Chuang, 225 F.3d at 1123–24 (internal citation
omitted).
The Air Force does not dispute that Hosea can satisfy the first three elements
of a prima facie case. We conclude Hosea can also satisfy the fourth element.
“[I]ndividuals are similarly situated when they have similar jobs and display
similar conduct.” Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003).
Here, Michael Olive was similarly-situated to Hosea because both were security
guards at Onizuka, and both were involved in the July 7 incident at the main gate,
each accusing the other of being the aggressor. Unlike Hosea, Olive is Caucasian
and was not reprimanded or restricted from carrying a firearm. “At summary
judgment, the degree of proof necessary to establish a prima facie case is minimal
and does not even need to rise to the level of a preponderance of the evidence.”
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).
Thus, viewing the evidence in the light most favorable to Hosea, the district court
properly determined that Hosea demonstrated that a similarly-situated individual
outside of his protected class was treated more favorably.
The Air Force, however, articulated a legitimate, nondiscriminatory reason
for its actions against Hosea where he was involved in the incident with Olive
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while he had guns in his vehicle, disobeyed Olive’s directive to move his vehicle,
yelled irately at shift supervisor Melony Whitecloud, stated she “must pay,” and
referenced a shooting incident at another military installation. The record shows
that Hosea’s supervisors relied on these events when deciding to issue a firearm
restriction, ban Hosea from the base, and ultimately terminate him.
The burden then shifted to Hosea to show that these reasons were pretextual
“either directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Chuang, 225 F.3d at 1124 (internal
quotation marks omitted). The district court correctly determined that Hosea failed
to meet his burden of establishing pretext where his references to discriminatory
motive are neither specific nor substantial and he did not show that the Air Force’s
proffered explanation is unworthy of credence given the escalation of his behavior
throughout the relevant six days.
B
To state a prima facie case of retaliation under Title VII, “a plaintiff must
show (1) involvement in a protected activity, (2) an adverse employment action
and (3) a causal link between the two. Thereafter, the burden of production shifts
to the employer to present legitimate reasons for the adverse employment action.
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Once the employer carries this burden, plaintiff must demonstrate a genuine issue
of material fact as to whether the reason advanced by the employer was a pretext.”
Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
The district court correctly concluded that Hosea failed to show a causal link
between his reporting, workers’ compensation, and EEOC activities and his
termination. None of the evidence supports his contention that his termination was
motivated by these activities. Instead, the record evidence supports the conclusion
that he was terminated for the events that transpired on July 7 through 12, 2010.
C
“To state a prima facie case under the Rehabilitation Act, a plaintiff must
demonstrate that (1) [he] is a person with a disability, (2) who is otherwise
qualified for employment, and (3) suffered discrimination because of [his]
disability.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007).
An individual has a “disability” if he has “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A);
see McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000) (holding that the
standards provided by the Americans with Disabilities Act apply to claims under
the Rehabilitation Act).
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The district court correctly determined that Hosea failed to establish that he
had a disability because his doctors found him only temporarily unable to work
based on acute work related stress from July 13, 2010, through September 25,
2010. There is no evidence that Hosea suffered long-term or permanent
impairment due to work-related stress. As the district court held, “[t]emporary
psychological impairment without evidence of residual effects is not a disability in
this context. Sanders v. Arneson Prods., 91 F.3d 1351, 1354 (9th Cir. 1996).”
Moreover, there is no evidence that the Air Force terminated Hosea because of his
inability to work due to stress.
D
“To prevail on a hostile workplace claim premised on either race or sex, a
plaintiff must show: (1) that he was subjected to verbal or physical conduct of a
racial or sexual nature; (2) that the conduct was unwelcome; and (3) that the
conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's
employment and create an abusive work environment.” Vasquez, 349 F.3d at 642.
“The working environment must both subjectively and objectively be perceived as
abusive.” Id. (alteration omitted).
The district court properly determined that Hosea failed to establish a prima
facie case of hostile work environment. The conduct of his supervisors could not
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be perceived as abusive, and Hosea did not present evidence that any conduct he
perceived as harassment was sufficiently severe or pervasive.
II
Hosea argues the district court improperly denied his motion to appoint
counsel. However, Hosea appealed the district court’s denial of his motion to
appoint counsel on July 28, 2011, and we affirmed the denial. Hosea v. Donley,
474 Fed. App’x 617 (9th Cir. July 13, 2012). Thus, we will not reconsider this
issue. Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991).
III
Hosea argues the district court violated his due process rights by removing
or tampering with his evidence and granting the Air Force summary judgment,
apparently with the goal of depriving him of a jury trial. His argument is
unsupported, undeveloped, and without merit. United States v. Tisor, 96 F.3d 370,
376 (9th Cir. 1996) (issue waived by failing to present argument or pertinent
authority to support contentions); Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986) (summary judgment under Federal Rule of Civil Procedure 56 is consistent
with due process); In re Peterson, 253 U.S. 300, 310 (1920) (“No one is entitled in
a civil case to trial by jury, unless and except so far as there are issues of fact to be
determined.”).
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AFFIRMED.
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