Gregg Conitz v. Teck Alaska Incorporated

FILED
NOT FOR PUBLICATION MAY 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGG CONITZ, No. 10-35195
Plaintiff - Appellant, D.C. No. 4:09-cv-00020-RRB
v.
MEMORANDUM *
TECK ALASKA INCORPORATED,
Defendant - Appellee,
and
NANA REGIONAL CORPORATION,
Defendant-intervenor -
Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted May 3, 2011
Anchorage, Alaska
Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Gregg Conitz (“Conitz”) appeals the district court’s grant of summary
judgment in favor of Teck Alaska Incorporated (“Teck”) and NANA Regional
Corporation, Inc. (“NANA”), on his Title VII discrimination claim. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
Teck’s preference for NANA shareholders applies only when two or more
equally qualified candidates seek promotion to the same position. If one of the
candidates is a NANA shareholder, this factor is used as a tie-breaker. Since this
policy purports to favor candidates because they hold shares in NANA, and not
because they are Alaska Natives, it is not facially discriminatory.
Because Teck’s policy does not directly discriminate on its face, Conitz must
satisfy the elements of a prima facie case, as laid out in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802 (1973), if his suit is to survive. See
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (noting that
where a Title VII plaintiff fails to present “direct evidence of discrimination,” the
case may still proceed if the McDonnell Douglas factors are satisfied); Bonilla v.
Oakland Scavenger Co., 697 F.2d 1297, 1301–03 (9th Cir. 1982) (applying the
McDonnell Douglas prima facie test to an employment policy favoring
shareholders). To establish a prima facie case, Conitz must show: (1) that he
belonged to a protected class, (2) that he was qualified for the job he sought, (3)
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that he was subjected to an adverse decision, and (4) similarly situated employees
not in his protected class received more favorable treatment. Anthoine v. N. Cent.
Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010).
Conitz has not satisfied the McDonnell Douglas test because all the evidence
in the record, aside from Conitz’s own uncorroborated statements, indicates that he
was not qualified for the position that he had sought. See Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (“[T]his court has refused to
find a genuine issue [of material fact] where the only evidence presented is
uncorroborated and self-serving testimony.” (internal quotation marks omitted)).
Since Conitz was denied promotion based on his lack of qualifications, and not
because of Teck’s shareholder preference, his claims cannot go forward.
Conitz suggests in the alternative that he could have satisfied the McDonnell
Douglas test had the district court granted his request to conduct further discovery.
We hold that the district court did not abuse its discretion in denying Conitz’s
request. Conitz himself had asked the district court to stay discovery pending
resolution of his motion for a permanent injunction. Conitz’s motion for a
permanent injunction amounted to a request to the district court to decide the full
merits of his case, and the district court said that it would therefore treat the motion
as a motion for summary judgment. Conitz accordingly assumed the risk of
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inadequate discovery when he requested that the district court rule on his motion
before developing a full record.
Finally, Conitz asks the court to decide whether Teck’s shareholder
preference policy constitutes racial discrimination in violation of Title VII.
Because Conitz has failed to demonstrate how the policy might have affected him,
we decline to reach this issue.
AFFIRMED.
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