Martin Spann v. City of Los Angeles

FILED
NOT FOR PUBLICATION
FEB 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN SPANN, No. 15-56343
Plaintiff-Appellant, D.C. No.
2:14-cv-01751-AB-AGR
v.
CITY OF LOS ANGELES, a government MEMORANDUM*
entity,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted February 16, 2017**
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and MURPHY,*** District
Judge.
*
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 Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Martin Spann, a veteran and member of the Army Reserve, appeals the
district court’s grant of summary judgment in favor of the City of Los Angeles
(“City”) in his hostile work environment suit under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.
§§ 4301–4335. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Assuming, without deciding, that harassment or hostile work environment is
a cognizable claim under USERRA,1 the district court properly granted summary
judgment on Spann’s hostile work environment claim. Reviewing the evidence in
the light most favorable to Spann, see Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004), undisputed evidence showed that Spann’s colleagues
made unwelcome verbal comments and gestures regarding his service and position
in the military. However, Spann failed to raise a genuine issue of material fact that
he was objectively subjected to a “pattern of ongoing and persistent harassment
severe enough to alter the conditions of employment.” Draper v. Coeur Rochester,
Inc., 147 F.3d 1104, 1108 (9th Cir. 1998) (citing Meritor Sav. Bank v. Vinson, 477
U.S. 57, 66–67 (1986)).
1
Because it was not raised, the issue is not properly before us. See
Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1129–30 (9th Cir.
2012).
2
“[C]onduct must be extreme to amount to a change in the terms and
conditions of employment,” and “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.” Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998) (citation and quotation marks omitted). Because the alleged
harassment was not so severe or pervasive as to alter the terms and conditions of
Spann’s employment, we affirm.2
Each party shall bear its own costs on appeal.
AFFIRMED.
2
Because we conclude that Spann did not have an actionable hostile
work environment claim, we need not reach whether the City was liable for the
actions of Spann’s coworkers and supervisors. See Swinton v. Potomac Corp., 270
F.3d 794, 803 (9th Cir. 2001).
3