Cervantes v. Emerald Cascade Restaurant Systems, Inc. , 644 F. App'x 780 ( 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NOT FOR PUBLICATION MAR 17 2016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
JOHN CERVANTES, No. 13-15595
Plaintiff - Appellant, D.C. No. 3:11-cv-00242-VPC
v.
MEMORANDUM*
EMERALD CASCADE RESTAURANT
SYSTEMS, INC., DBA Jack-in-the-Box,
Inc.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Valerie P. Cooke, Magistrate Judge, Presiding
Submitted March 15, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
This is a Title VII employment discrimination appeal in which the
Plaintiff/Appellant, John Cervantes, prevailed after a jury trial, and now challenges
*
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).
the district court’s grant of summary judgment to his former employer, Emerald
Cascade Restaurant Systems d/b/a Jack-in-the-Box, on several discrimination
claims before trial as well as the district court’s decision to reduce punitive
damages. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part,
affirm in part, and remand.
1. The district court’s decision to reduce punitive damages is reversed and
remanded for reconsideration in light of our intervening decision in Arizona v.
ASARCO, 773 F.3d 1050 (9th Cir. 2014) (en banc).
2. Cervantes argues the district court erred in granting partial summary
judgment to Emerald Cascade on his claims for retaliation, hostile work
environment, and constructive discharge. We review grants of summary judgment
de novo. F.T.C. v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009). The district
court did not err in granting summary judgment on these three claims as they were
not advanced until Cervantes’s opposition to summary judgment and Cervantes’s
complaint did not give Emerald Cascade notice of these theories of liability, under
the “liberal notice pleading standard” of Fed. R. Civ. P. 8. See Pickern v. Pier 1
Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006). Because “summary judgment
is not a procedural second chance to flesh out inadequate pleadings,” the district
court was correct to grant partial summary judgment on these three theories before
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trial. See Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.
2006) (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)).
3. In a footnote to his opening brief, Cervantes notes his objection to the
district court’s decision to exclude from trial a comment about flying the American
flag. But Cervantes provides no substantive argument as to how the district court
erred, so he has waived this issue on appeal. See Ghahremani v. Gonzales, 498
F.3d 993, 997-98 (9th Cir. 2007).
Each party shall bear its own costs.
AFFIRMED in part; REVERSED in part; and REMANDED on the
first issue only.
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