Guinn v. San Bernardino County

MEMORANDUM ^**

Harold M. Guinn appeals pro se the district court’s partial dismissal and partial summary judgment for defendants in his employment discrimination action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni 31 F.3d 813, 815-16 (9th Cir.1994) , and we affirm.

The district court properly dismissed the claim against Guinn’s supervisor, Steven Harrison, because civil liability under Title VII is limited to the employer. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993). The district court also properly dismissed Guinn’s state law contractual claims because the terms and conditions of public employment are governed by statute and not contract. See Hill v. City of Long Beach, 33 Cal.App.4th 1684, 1690, 40 Cal.Rptr.2d 125 (Cal.Ct.App. 1995) (holding that a public employee is not entitled to contract remedies against his employer).

The district court properly granted summary judgment on Guinn’s discriminatory failure to promote claim because Guinn failed to present any evidence that he was not promoted because of his race or age. See Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (prima facie case of discrimination requires a showing by a preponderance of the evidence that the plaintiff applied for an available position for which he was qualified, but was rejected under circumstances which give rise to an inference of discrimination).

The district court also properly granted summary judgment as to Guinn’s intentional infliction of emotional distress claim because failure to promote does not constitute outrageous conduct beyond the bounds of human decency. See Miller v. Cal., 18 Cal.3d 808, 135 Cal.Rptr. 386, 557 P.2d 970, 973 (1977).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.