Curtis Philbert v. Denis McDonough

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2021
• Docket: 19-56396
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CURTIS W. PHILBERT, No. 19-56396

Plaintiff-Appellant, D.C. No. 5:17-cv-00929-CAS-KK

v. MEMORANDUM* DENIS McDONOUGH, Secretary of Veterans Affairs,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Curtis W. Philbert appeals pro se from the district court’s summary

judgment in his employment action alleging federal claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Dep’t of Fair Emp’t & Hous. v.

Lucent Techs., Inc., 642 F.3d 728, 736 (9th Cir. 2011). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court properly granted summary judgment on Philbert’s

Title VII national origin discrimination, sex discrimination, and retaliation claims

because Philbert failed to raise a genuine dispute of material fact as to whether the

Department of Veterans Affairs’ (“VA”) legitimate, nondiscriminatory, and

nonretaliatory reasons for not promoting him or reclassifying his position were

pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-

59 (9th Cir. 2002) (setting forth burden-shifting framework for Title VII

discrimination claim; circumstantial evidence of pretext for discrimination claim

must be specific and substantial); see also Stegall v. Citadel Broad. Co., 350 F.3d

1061, 1065-66 (9th Cir. 2004) (burden-shifting framework applies to Title VII

retaliation claim; circumstantial evidence of pretext for retaliation claim must be

specific and substantial).

The district court properly granted summary judgment on Philbert’s

Title VII wage discrimination claim. The VA presented evidence that Philbert did

not apply for a promotion and his position did not qualify for reclassification, and

Philbert failed to present evidence to the contrary. See Maxwell v. City of Tucson,

803 F.2d 444, 446 (9th Cir. 1986) (“When a Title VII [plaintiff] contends that [he]

has been denied equal pay for substantially equal work, . . . Equal Pay Act

[(‘EPA’)] standards apply.”); see also Rizo v. Yovino, 950 F.3d 1217, 1222 (9th

Cir. 2020) (setting forth EPA’s four exceptions for wage differential, which

2 19-56396 operate as affirmative defenses).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 19-56396