James Robinson v. Dungarvin Nevada, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2018
• Docket: 18-15312
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES E. ROBINSON, No. 18-15312

Plaintiff-Appellant, D.C. No. 2:16-cv-00902-JAD-PAL

v. MEMORANDUM* DUNGARVIN NEVADA, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

James E. Robinson appeals pro se from the district court’s summary

judgment in his employment action alleging federal and state law claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Zetwick v. County of

Yolo, 850 F.3d 436, 440 (9th Cir. 2017). 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 Robinson’s

race, age, and disability discrimination claims, as well as on Robinson’s retaliation

claim, because Robinson failed to raise a genuine dispute of material fact as to

whether the legitimate, non-discriminatory reasons for defendant’s actions were

pretextual. See Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir.

2014) (burden-shifting framework applies to disability discrimination claim under

the Americans with Disabilities Act); Whitman v. Mineta, 541 F.3d 929, 932 (9th

Cir. 2008) (burden-shifting framework applies to age discrimination claims under

the Age Discrimination in Employment Act); Porter v. Cal. Dep’t of Corr., 419

F.3d 885, 894 (9th Cir. 2004) (burden-shifting framework applies to Title VII

retaliation claims); Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115,

1123-24 (9th Cir. 2000) (burden-shifting framework applies to Title VII race

discrimination claims ); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1062 (9th Cir. 2002) (circumstantial evidence of pretext must be specific and

substantial).

The district court properly granted summary judgment on Robinson’s

genetic information discrimination claim because Robinson failed to raise a

genuine dispute of material fact as to whether defendant terminated or

discriminated against Robinson because of Robinson’s genetic information. See 42

U.S.C. § 2000ff-1(a)(1) (noting that employer cannot “fail or refuse to hire, or to

2 18-15312 discharge, any employee” based on genetic information).

The district court properly granted summary judgment on Robinson’s

tortious discharge claim because Robinson’s Title VII retaliation claim provided

him with an “adequate, comprehensive, statutory remedy.” Ozawa v. Vision

Airlines, Inc., 216 P.3d 788, 791 (Nev. 2009) (Nevada does “not recognize an

action for tortious discharge when a plaintiff has an adequate, comprehensive,

statutory remedy”).

The district court properly granted summary judgment on Robinson’s

intentional infliction of emotional distress (“IIED”) claim because Robinson failed

to raise a genuine dispute of material fact as to whether defendant engaged in

extreme and outrageous conduct. See Nelson v. City of Las Vegas, 665 P.2d 1141,

1145 (Nev. 1983) (elements of IIED claim under Nevada law).

We do not consider Robinson’s contention regarding violations of the Fair

Credit Report Act because Robinson failed to allege such a claim in his operative

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

does not consider allegations raised for the first time on appeal).

AFFIRMED.

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