Heather Kowitz v. City of Portland ( 2020 )

NOT FOR PUBLICATION FILED
MAR 6 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEATHER KOWITZ, No. 19-35148
Plaintiff-Appellant, D.C. No. 3:16-cv-00598-SI
v.
MEMORANDUM*
CITY OF PORTLAND,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Heather Kowitz appeals pro se from the district court’s summary judgment
in her employment action alleging federal and state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, and we may affirm on
any basis supported by the record. Curley v. City of N. Las Vegas, 772 F.3d 629,
*
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).
631 (9th Cir. 2014). We affirm.
The district court properly granted summary judgment on Kowitz’s Oregon
state law employment claims because Kowitz failed to commence the action in a
timely manner. See Or. Rev. Stat. § 12.020(1) (an action is not commenced until
plaintiff files a complaint and serves the summons on the defendant); Or. Rev. Stat.
§ 659A.875(2) (party has 90 days to file civil lawsuit after the mailing of the
Oregon Bureau of Labor and Industries notice of right to sue); Sain v. City of Bend,
309 F.3d 1134, 1138 (9th Cir. 2002) (federal courts apply state law statute of
limitations for state law claims).
The district court properly granted summary judgment on Kowitz’s
discrimination claim regarding the psychological fitness for duty evaluation
because Kowitz failed to raise a genuine dispute of material fact as to whether the
examination was not job-related and inconsistent with business necessity. See
Brownfield v. City of Yakima, 612 F.3d 1140, 1145 (9th Cir. 2010) (explaining
business necessity standard).
Summary judgment on Kowitz’s Americans with Disabilities Act (“ADA”)
discrimination claim regarding alleged disparate treatment and Title VII retaliation
claim was proper because Kowitz failed to raise a genuine dispute of material fact
as to whether the City’s legitimate, nondiscriminatory reasons for its adverse
actions were pretextual. See Curley v. City of N. Las Vegas, 772 F.3d 629, 632
2 19-35148
(9th Cir. 2014) (explaining that in an ADA discrimination action, where an
employer has offered a legitimate, nondiscriminatory reason for the adverse
employment action, the burden shifts back to the employee to show that each of the
employer’s proffered reasons were pretextual); Surrell v. Cal. Water Serv. Co., 518
F.3d 1097, 1107-08 (9th Cir. 2008) (elements of a retaliation claim under Title
VII); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066, 1069-70 (9th Cir. 2004)
(circumstantial evidence of pretext must be specific and substantial); see also
Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010) (district court
does not have to scour the record of disorganized filings in search of a genuine
dispute of material fact), overruled on other grounds by Castro v. County of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
We do not consider allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not consider
documents not presented to the district court. See United States v. Elias, 921 F.2d
870, 874 (9th Cir. 1990).
Kowitz’s request to withdraw her motion to proceed in forma pauperis
(Docket Entry No. 16) is granted. Kowitz’s motion to proceed in forma pauperis
(Docket Entry No. 8) is denied as unnecessary. All other pending motions (Docket
Entry No. 25 and Docket Entry No. 27) are denied.
AFFIRMED.
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