Janice Smets v. Deborah James

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 16-56551
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JANICE SMETS, No. 16-56551

Plaintiff-Appellant, D.C. No. 2:15-cv-08555-JFW-JC

v. MEMORANDUM** HEATHER WILSON, Secretary of the Air Force,*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Submitted March 13, 2018***

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Janice Smets appeals pro se from the district court’s summary judgment in

her action alleging age discrimination and retaliation in violation of the Age

* Heather Wilson has been substituted for her predecessor, Deborah Lee James, as Secretary of the Air Force under Fed. R. App. P. 43(c)(2). ** 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). Discrimination in Employment Act (“ADEA”) and Title VII. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Vasquez v. County of Los Angeles,

349 F.3d 634, 639 (9th Cir. 2004). We affirm.

The district court properly granted summary judgment on Smets’s age

discrimination claim because Smets failed to raise a genuine dispute of material

fact as to whether she was discriminated against on the basis of her age. See

Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987) (setting forth

elements of a prima facie case of age discrimination under the ADEA).

The district court properly granted summary judgment on Smets’s retaliation

claim because Smets failed to raise a genuine dispute of material fact as to whether

defendant took an adverse employment action against her. See Cornwell v. Electra

Cent. Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006) (setting forth elements

of a prima facie case of retaliation under Title VII).

The district court properly denied Smets’s motion to remand the action to

the Equal Employment Opportunity Commission. See 29 C.F.R. § 1614.409

(“Filing a civil action . . . shall terminate Commission processing of the appeal.”).

We reject as without merit Smets’s contention that the district court lacked

jurisdiction over her action as a “mixed case” complaint or appeal under 29 C.F.R.

§ 1614.302.

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

2 16-56551 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).

Smets’s motion to correct the opening brief (Docket Entry No. 26) is

granted.

AFFIRMED.

3 16-56551