Domingo Ricasa v. State of Hawaii

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DOMINGO P. RICASA, No. 19-17288

Plaintiff-Appellant, D.C. No. 1:18-cv-00033-HG-WRP v.

STATE OF HAWAII, DEPARTMENT OF MEMORANDUM* HUMAN SERVICES; PANKAJ BHANOT, in his official capacity as Director, State of Hawaii, Department of Human Services,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Submitted February 16, 2022** Honolulu, Hawaii

Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.

Domingo P. Ricasa appeals the adverse grant of summary judgment in his

employment discrimination and retaliation action under Title VII of the Civil Rights

* 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). Act of 1964, the Americans with Disabilities Act (“ADA”), § 504 of the

Rehabilitation Act, and the Age Discrimination in Employment Act (“ADEA”)

against the State of Hawaii; the State of Hawaii Department of Human Services

(“HDHS”); and Pankaj Bhanot, the Director of HDHS, in his official capacity. We

have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Updike v. Multnomah

County, 870 F.3d 939, 947 (9th Cir. 2017), we affirm.

1. Ricasa does not dispute that the Eleventh Amendment bars his claims

under the ADA and ADEA for money damages and retrospective relief against the

State, HDHS, and Bhanot in his official capacity. See Kimel v. Fla. Bd. of Regents,

528 U.S. 62, 91 (2000); Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,

374 (2001). Nor does he challenge the conclusion that his Title VII sex

discrimination and hostile work environment claims are time-barred. See Scott v.

Gino Morena Enters., LLC, 888 F.3d 1101, 1112 (9th Cir. 2018). Thus, we affirm

the district court’s grant of judgment on those claims.

2. It was also permissible to grant summary judgment on Ricasa’s

remaining claims. To establish a prima facie case of discrimination under the ADA

or § 504 of the Rehabilitation Act, Ricasa must show that (1) he was disabled, (2) he

was otherwise qualified to perform the essential functions of his position with or

without reasonable accommodation, and (3) an adverse employment decision was

made against him because of his disability. See Kennedy v. Applause, 90 F.3d 1477,

2 19-17288 1481 (9th Cir. 1996). Ricasa concedes that he is unable to perform the essential

functions of a youth corrections officer but nevertheless argues summary judgment

was inappropriate because he could have fulfilled the role if given a permanent light

duty assignment. However, as the district court acknowledged, Ricasa failed to

present evidence showing that any permanent light duty positions exist for youth

corrections officers. See Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155

(9th Cir. 1999) (recognizing that “[a] ‘reasonable accommodation’ has not . . . been

held to include creation of a new job”). Thus, summary judgment was warranted.

See Mendoza v. The Roman Catholic Archbishop of Los Angeles, 824 F.3d 1148,

1150 (9th Cir. 2016) (per curiam).

3. To establish a prima facie case of retaliation under the relevant statutes,

Ricasa was required to show: (1) involvement in a protected activity, (2) an adverse

employment action, and (3) a causal connection between the two. See, e.g., T.B. ex

rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015).

Ricasa did not present direct evidence demonstrating that the complaints he lodged

in 2015 caused his 2017 transfer to a different HDHS division. Instead, the

undisputed evidence shows that Ricasa was transferred because he was deemed

medically unable to perform the duties of a youth corrections officer, and no

permanent light duty position was available within the corrections department. In

light of the defendants’ proffered reason for Ricasa’s transfer and the length of time

3 19-17288 between Ricasa’s complaints and his transfer, the timing of events alone is

insufficient to warrant an inference of causation. See Manatt v. Bank of Am., NA,

339 F.3d 792, 802 (9th Cir. 2003).

4. Finally, to establish a prima facie claim of age discrimination under the

ADEA, Ricasa was required to show: (1) he was at least forty years old, (2) he was

qualified for the position he sought, (3) he was denied the position, and (4) the

position was given to a substantially younger person. Shelley v. Green, 666 F.3d

599, 608 (9th Cir. 2012). Ricasa submitted a declaration stating that in September

2015 he requested but was denied a temporary light duty assignment while two

younger officers were given such assignments. Even assuming Ricasa’s declaration

was sufficient to make a prima facie showing, summary judgment was appropriate.

See id. at 609. The defendants submitted a declaration providing a legitimate non-

discriminatory explanation for its action—Ricasa’s doctor had cleared him to return

to work at full capacity while the other officers’ doctors recommended the officers

be limited to temporary light duty assignments due to medical conditions. Ricasa

did not offer any evidence specifically to rebut the defendants’ proffered

explanation, and his declaration standing alone was insufficient to avoid summary

judgment. See id.

AFFIRMED.

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