Allen v. Raley's

707 F. App'x 486

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2017
• Docket: No. 14-17275
• Status: Published

Opinion

MEMORANDUM

**

Anthony B. Alen appeals pro se from the district court’s judgment, after a jury trial, in his employment discrimination action under Title VII and California’s Fair Employment and Housing Act (“FEHA”) against Raley’s Corp. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Alen waived his challenge to the sufficiency of the evidence supporting the verdict on his claim of a racially hostile work environment by failing to move for judgment as a matter of law or a new trial before the district court. See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1088-90 (9th Cir. 2007) (holding that to preserve a sufficiency-of-the-evidence challenge, a party must file both a pre-verdict motion under Federal Rule of Civil Procedure 50(a) and a post-verdict motion for judgment .as a matter of law or a new trial under Rule 60(b)).

The district court properly granted summary judgment on Alen’s claim of race discrimination. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 685 (9th Cir. 2017) (holding that grant of summary judgment is reviewed de novo). Alen failed to raise a genuine dispute of material fact as to whether he suffered an adverse employment action in the denial of a promotion or transfer because he did not apply for any promotions or transfers during the relevant period. See id. at 690-91 (setting forth prima facie case of discrimination under Title VII); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998) (explaining that FEHA mirrors Title VII). Further, viewing the evidence in the light most favorable to Allen, the district court properly concluded that he failed to establish a prima facie case of race discrimination based on a work-hour reduction. See Reynaga, 847 F.3d at 690-91.

The district court properly granted summary judgment on Allen’s claim of failure to prevent discrimination under Cal. Gov’t Code § 12940(k) because the evidence shows that Raley’s promptly investigated his complaints of harassment and discrimination. See Ravel v. Hewlett-Packard Enter., Inc., 228 F.Supp.3d 1086, 1098 (E.D. Cal. 2017) (setting forth elements of claim); Cal. Fair Emp’t & Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal.App.4th 1004, 18 Cal.Rptr.3d 906, 920-21 (2004) (setting forth “reasonable steps” that an employer must take to prevent discrimination), In addition, this claim is precluded because Allen failed to establish discrimination. See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 748 (9th Cir. 2011) (explaining that failure-to-prevent claim is derivative of discrimination claim).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.