Ricky Turner v. Department of Education, State

FILED
NOT FOR PUBLICATION AUG 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICKY TURNER, No. 12-15698
Plaintiff - Appellant, D.C. No. 1:10-cv-00707-ACK-
BMK
v.
STATE OF HAWAII DEPARTMENT OF MEMORANDUM *
EDUCATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted August 14, 2013 **
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Ricky Turner appeals pro se from the district court’s summary judgment in
his employment action alleging race discrimination and harassment in violation of
federal and state law. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
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).
novo, Vasquez v. County of Los Angeles, 349 F.3d 634, 639-40 (9th Cir. 2004), and
we affirm.
The district court properly granted summary judgment on Turner’s claims
under Title VII, 42 U.S.C. § 1981, and section 378-2 of the Hawaii Revised
Statutes because Turner failed to raise a genuine dispute of material fact as to
whether similarly situated individuals were treated more favorably, and whether
defendants’ stated non-discriminatory reasons for terminating his employment
were mere pretext. See id. at 640-42 & n.5 (listing elements of a prima facie case
of discrimination, discussing “similarly situated” individuals requirement, and
explaining that circumstantial evidence of pretext must be specific and substantial);
see also Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 n.5 (9th Cir.
2006) (the McDonnell Douglas framework applies to employment discrimination
claims under 42 U.S.C. § 1981); Hac v. Univ. of Haw., 73 P.3d 46, 55 (Haw. 2003)
(the McDonnell Douglas framework applies to discrimination cases under section
378-2 of the Hawaii Revised Statutes).
The district court properly granted summary judgment on Turner’s hostile
work environment claims because Turner failed to raise a genuine dispute of
material fact as to any element of his claims. See Johnson v. Riverside Healthcare
Sys., LP, 534 F.3d 1116, 1122 & n.3 (9th Cir. 2008) (elements of a hostile work
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environment claim under Title VII and 42 U.S.C. § 1981); Nelson v. Univ. of Haw.,
38 P.3d 95, 109 (Haw. 2001) (elements of a hostile work environment claim under
section 378-2 of the Hawaii Revised Statutes); see also Rivera v. Nat’l R.R.
Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations
unsupported by factual data cannot defeat summary judgment.”).
The district court properly granted summary judgment on Turner’s claims
under Title VI and 42 U.S.C. §§ 1983 and 1985 because Turner failed to raise a
genuine dispute of material fact as to whether defendants engaged in intentional
discrimination. See Marsh v. County of San Diego, 680 F.3d 1148, 1152 (9th Cir.
2012) (“To prevail under 42 U.S.C. § 1983, a plaintiff must prove that he was
‘deprived of a right secured by the Constitution or laws of the United States, and
that the alleged deprivation was committed under color of state law.’” (citation
omitted)); Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d
690, 703 (9th Cir. 2009) (discussing “similar proofs” required for violations of
equal protection and Title VI); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930
(9th Cir. 2004) (“[T]o state a claim for conspiracy under § 1985, a plaintiff must
first have a cognizable claim under § 1983.”).
We do not consider Turner’s contentions concerning the timeliness of his
claims because, as explained above, his claims fail on the merits.
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We do not consider 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).
Turner’s motion, filed on July 9, 2012, and his request for leave to file an
amended complaint, set forth in the opening brief, are denied.
AFFIRMED.
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