John Capadanno v. At&t Mobility Services LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 8, 2023
• Docket: 22-35359
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN CAPADANNO, No. 22-35359

Plaintiff-Appellant, D.C. No. 2:20-cv-01690-MAT

v. MEMORANDUM* AT&T MOBILITY SERVICES LLC,

Defendant-Appellee,

and

AT&T CORP.,

Defendant.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Submitted August 4, 2023** San Francisco, California

Before: O’SCANNLAIN, SILVERMAN, and JOHNSTONE, Circuit Judges.

* 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). John Capadanno appeals pro se from the district court’s grant of summary

judgment in favor of his former employer AT&T Mobility Services (“AT&T”) on

his claims of age discrimination, retaliation, and negligence under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000e-17, and

Washington state law. We have jurisdiction under 28 U.S.C. § 1291. We review

the district court’s order granting summary judgment de novo. Opara v. Yellen, 57

F.4th 709, 721 (9th Cir. 2023). We view the evidence in the light most favorable to

Capadanno, the nonmoving party, to determine whether there are any genuine

issues of material fact. Id. Finding none, we affirm.

The district court correctly granted summary judgment in favor of AT&T on

Capadanno’s age discrimination claims. A plaintiff can make out a prima facie

case of age discrimination “either by using the McDonnell Douglas framework, or

alternatively, [by] simply produc[ing] direct or circumstantial evidence

demonstrating that a discriminatory reason more likely than not motivated the

employer.” Opara, 57 F.4th at 721–22 (citation and internal quotation marks

omitted) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973));

see Weil v. Citizens Telecom Servs. Co., 922 F.3d 993, 1002 (9th Cir. 2019)

(McDonnell Douglas framework applies to Washington state-law employment

discrimination claims). If the plaintiff makes a prima facie case of discrimination,

2 the burden shifts to the employer to produce “some legitimate, nondiscriminatory

reason for the challenged action.” Opara, 57 F.4th at 723 (citation omitted). The

plaintiff then “must show that the articulated reason is pretextual.” Id.

The district court correctly found that Capadanno failed to establish a prima

facie case of age discrimination under the McDonnell Douglas framework because

he failed to show satisfactory job performance and that AT&T treated younger,

similarly situated employees more favorably. See id. at 722 (discussing McDonnell

Douglas factors). Nor did Capadanno otherwise produce direct or circumstantial

evidence demonstrating AT&T was motivated by a discriminatory motive. The

district court further correctly found that, even if Capadanno had established a

prima facie case of age discrimination, AT&T articulated a legitimate, non-

discriminatory reason for his termination, and Capadanno offered no evidence to

show the reason was pretextual. Accordingly, Capadanno did not raise a genuine

issue of material fact as to whether AT&T’s employment actions were “due in

whole or in part to age discrimination.” Id. at 728.

The district court also correctly granted summary judgment in favor of

AT&T on Capadanno’s retaliation claim. Capadanno failed to establish a prima

facie case for retaliation because he failed to provide evidence of a causal link

between any protected behavior and AT&T’s termination of his employment. See

Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (discussing

3 elements of a prima facie case of retaliation under Title VII). Moreover, even if

Capadanno had made a prima facie case, AT&T provided a legitimate,

nonretaliatory reason for terminating his employment and Capadanno produced no

evidence the reason was pretextual. See id. at 1464–5.

We will not disturb the district court’s grant of summary judgment on

Capadanno’s negligence claim involving his manager’s behavior towards him

where Capadanno does not specify what type of negligence claim under

Washington state law he asserts nor identify a theory under which liability would

extend to AT&T, and where he does not challenge the district court’s reasoning for

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

(per curiam) (“This court will not ordinarily consider matters on appeal that are not

specifically and distinctively raised and argued in appellant’s opening brief.”)

(citation and internal quotation marks omitted). Similarly, we decline to consider

Capadanno’s contentions regarding his failure to respond to the motion for

summary judgment because he did not raise them before the district court. See id.

(declining to consider arguments and allegations raised for the first time on

appeal).

Capadanno’s request for appointment of counsel on appeal, filed on June 27,

2022 (Dkt. No. 6), is DENIED.

AFFIRMED.