Myrna Parayno v. John Potter

FILED
NOT FOR PUBLICATION JUL 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MYRNA U. PARAYNO, No. 10-36183
Plaintiff - Appellant, D.C. No. 2:09-cv-00487-MJP
v.
MEMORANDUM **
PATRICK R. DONAHOE *, Postmaster
General; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted June 26, 2012 ***
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Myrna U. Parayno appeals pro se from the district court’s summary
judgment in her employment action alleging failure to accommodate her disability,
*
Patrick R. Donahoe has been substituted for his predecessor, John E.
Potter, as Postmaster General under Fed. R. App. P. 43(c)(2).
**
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).
race and national origin discrimination, and retaliation under the Rehabilitation Act
and Title VII. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004). We may
affirm on any ground supported by the record, Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008), and we affirm.
Summary judgment was properly granted on Parayno’s failure to
accommodate claim because Parayno failed to raise a genuine dispute of material
fact as to whether defendant reasonably accommodated her disability. See
Buckingham v. United States, 998 F.2d 735, 739 (9th Cir. 1993) (discussing an
employer’s duty to accommodate under the Rehabilitation Act); see also Zivkovic
v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“An ‘employer is not
obligated to provide an employee the accommodation he requests or prefers, the
employer need only provide some reasonable accommodation.’” (citation
omitted)); Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (“[A]
party cannot create an issue of fact by an affidavit contradicting his prior
deposition testimony.”).
The district court properly granted summary judgment on Parayno’s race
and national origin discrimination claim because Parayno failed to raise a triable
dispute as to whether she was subjected to an adverse action, and whether similarly
2 10-36183
situated individuals were treated more favorably. See Vasquez, 349 F.3d at 640-41
& n.5 ( elements of a prima facie case of discrimination; “individuals are similarly
situated when they have similar jobs and display similar conduct”).
The district court properly granted summary judgment on Parayno’s
retaliation claim because Parayno failed to raise a triable dispute as to whether she
was subjected to an adverse action, and whether there was a causal link between
her filing of EEO complaints and the alleged adverse actions. See id. at 646(elements of a prima facie case of retaliation); Cohen v. Fred Meyer, Inc., 686 F.2d
793, 796 (9th Cir. 1982) (no causal link if decisionmaker is unaware of the
protected activity).
The district court did not abuse its discretion by denying Parayno’s motion
for reconsideration because Parayno failed to establish a basis for reconsideration.
See W.D. Wash. L.R. 7(h)(1) (grounds for reconsideration); MacDonald v. Grace
Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Parayno’s remaining contentions are unpersuasive.
AFFIRMED.
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