Judy Long v. Alameda Unified School Dist.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2019
• Docket: 18-16131
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUDY LONG, No. 18-16131

Plaintiff-Appellant, D.C. No. 3:16-cv-06279-JST

v. MEMORANDUM* ALAMEDA UNIFIED SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Submitted March 12, 2019**

Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.

Judy Long appeals pro se from the district court’s summary judgment in her

employment action alleging race discrimination claims under Title VII and

California’s Fair Employment and Housing Act (“FEHA”). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051,

* 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). 1056 (9th Cir. 2004). We affirm.

The district court properly granted summary judgment because Long failed

to raise a genuine dispute of material fact as to whether Alameda Unified School

District’s (“AUSD”) legitimate, non-discriminatory reasons for its actions were

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

59 (9th Cir. 2002) (discussing elements and burden-shifting framework of a

discrimination claim under Title VII and explaining that evidence of pretext must

be specific and substantial); see also Metoyer v. Chassman, 504 F.3d 919, 941 (9th

Cir. 2007) (“California courts apply the Title VII framework to claims brought

under FEHA”), abrogated on other grounds by Nat’l Ass’n of African Am.-Owned

Media v. Charter Commc’n, Inc., 915 F.3d 617 (9th Cir. 2019).

The district court did not abuse its discretion in excluding under the “sham

affidavit rule” Long’s evidence concerning an alleged phone call she received

because this evidence contradicted Long’s prior deposition testimony. See

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (standard of

review); Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009)

(explaining sham affidavit rule).

Long has waived her challenge to the district court’s cost award because

2 18-16131 Long failed to move the district court to review the award. See Walker v.

California, 200 F.3d 624, 626 (9th Cir. 1999) (explaining that “a party may

demand judicial review of a cost award only if such party . . . moved the district

court to review the award.”).

We reject as without merit Long’s contentions that the district court failed to

consider her evidence.

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not

consider documents and facts not presented to the district court. See United States

v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to

the district court are not part of the record on appeal.”).

Long’s requests that AUSD and Stanford University be required to

“validate,” “verify,” or submit various information, set forth in her opening and

reply briefs, are denied.

AUSD’s motions to strike (Docket Entry Nos. 10 and 20) are denied as

moot.

AFFIRMED.

3 18-16131