NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KEVIN GLASS, No. 20-15636
Plaintiff-Appellant, D.C. No. 2:18-cv-00898-DLR
v. MEMORANDUM* ASIC NORTH, INC., an Arizona corporation,
Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Submitted March 5, 2021** Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.
Kevin Glass appeals the district court’s decision to grant AsicNorth, Inc.
* 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 Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. summary judgment on his Americans with Disabilities Act (ADA) discrimination
and retaliation claims. The parties are familiar with the facts, so we do not recite
them here. We have jurisdiction under 28 U.S.C. § 1291. Summary judgment is
reviewed de novo. L.F. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir.
2020). We review evidentiary rulings at the summary judgment stage for abuse of
discretion. Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005).
We affirm.
1. Glass first argues that the district court abused its discretion in considering
the new evidence AsicNorth attached to its reply in support of its motion for
summary judgment. But the district court granted Glass leave to file a surreply
addressing this new evidence. And a district court does not abuse its discretion
when, before considering new evidence attached to a reply brief, it gives the
opposing party an opportunity to respond to the new evidence. See Dutta v. State
Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir. 2018). As such, the
district court did not abuse its discretion when it considered AsicNorth’s new
evidence at the summary judgment stage. See id.; JG v. Douglas Cnty. Sch. Dist.,
552 F.3d 786, 803 n.14 (9th Cir. 2008).
2. In the alternative, Glass contends that the district court abused its discretion
by refusing to consider the new evidence accompanying his surreply in opposition
to AsicNorth’s motion for summary judgment. Yet, the district court did not
2 provide AsicNorth with the opportunity to address Glass’s new evidence. “Where
new evidence is presented in a reply to a motion for summary judgment, the
district court should not consider the new evidence without giving the movant an
opportunity to respond.” Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)
(internal alteration and citation omitted). Accordingly, Glass’s challenge on this
front fails. See id.
3. Glass also insists that the district court erroneously concluded that he did not
set out a prima facie ADA discrimination claim against AsicNorth based on his
carpal tunnel syndrome.
Carpal tunnel syndrome can form the basis of an ADA discrimination claim.
Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1154–55 (9th Cir. 1999).
However, ADA plaintiffs who rely on carpal tunnel syndrome must provide
evidence that the condition substantially limits one or more of their major life
activities. Id.; see also Broussard v. Univ. of Cal., at Berkeley, 192 F.3d 1252,
1254, 1256 (9th Cir. 1999).
Glass alleges that he has carpal tunnel syndrome. His summary judgment
evidence included a declaration from Dr. Michael Wilmink, who advised that he
had treated “Glass for bone spurs that limit his major life activity of movement.”
Glass also included his own declaration, in which he stated that he informed
AsicNorth that: “I suffer from carpel [sic] tunnel and my arms hurt and that
3 [AsicNorth’s] outdated software was requiring me to do a lot of typing.”
Dr. Wilmink’s declaration cannot help Glass’s discrimination claim because
it does not discuss carpal tunnel syndrome at all, nor is there any evidence in the
record that Glass’s bone spurs are connected to his carpal tunnel syndrome. See
Broussard, 192 F.3d at 1254, 1256; Wellington, 187 F.3d at 1154. Further, Glass’s
declaration is not evidence that his carpal tunnel syndrome impairs his typing
ability, so it cannot establish a substantial limitation on a major life activity. See
Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009)
(indicating that pain, standing alone, is insufficient proof of a substantial limitation
on a major life activity); Rohr v. Salt River Project Agric. Imp. & Power Dist., 555
F.3d 850, 859 (9th Cir. 2009) (internal alteration and citation omitted) (“To survive
summary judgment, an affidavit supporting the existence of a disability must not
be merely self-serving and must contain sufficient detail to convey the existence of
an impairment.”).
Because Glass did not carry his threshold burden of providing evidence that
his carpal tunnel syndrome substantially limits at least one of his major life
activities, he failed to set out a prima facie ADA discrimination claim against
AsicNorth. For this reason, we affirm the district court’s grant of summary
judgment on that claim.
4. Glass next maintains that the district court inappropriately granted
4 AsicNorth summary judgment on his ADA retaliation claim. Here, Glass
challenges the district court’s conclusion that he failed to establish that
AsicNorth’s non-discriminatory reason for firing him was pretextual.
Plaintiffs who litigate ADA retaliation claims that reach the pretext stage
“must produce sufficient evidence to raise a genuine issue of material fact as to
whether the employer’s proffered non-discriminatory reason is merely a pretext for
discrimination.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037
(9th Cir. 2005). In addition, “circumstantial evidence of pretext must be specific
and substantial in order to survive summary judgment.” Brown v. City of Tucson,
336 F.3d 1181, 1188 (9th Cir. 2003) (internal alteration and citation omitted).
Glass initially argues that the six-week gap between his May 20, 2016,
EEOC complaint and his July 1, 2016, termination is sufficient evidence of pretext.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KEVIN GLASS, No. 20-15636
Plaintiff-Appellant, D.C. No. 2:18-cv-00898-DLR
v. MEMORANDUM* ASIC NORTH, INC., an Arizona corporation,
Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Submitted March 5, 2021** Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.
Kevin Glass appeals the district court’s decision to grant AsicNorth, Inc.
* 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 Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. summary judgment on his Americans with Disabilities Act (ADA) discrimination
and retaliation claims. The parties are familiar with the facts, so we do not recite
them here. We have jurisdiction under 28 U.S.C. § 1291. Summary judgment is
reviewed de novo. L.F. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir.
2020). We review evidentiary rulings at the summary judgment stage for abuse of
discretion. Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005).
We affirm.
1. Glass first argues that the district court abused its discretion in considering
the new evidence AsicNorth attached to its reply in support of its motion for
summary judgment. But the district court granted Glass leave to file a surreply
addressing this new evidence. And a district court does not abuse its discretion
when, before considering new evidence attached to a reply brief, it gives the
opposing party an opportunity to respond to the new evidence. See Dutta v. State
Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir. 2018). As such, the
district court did not abuse its discretion when it considered AsicNorth’s new
evidence at the summary judgment stage. See id.; JG v. Douglas Cnty. Sch. Dist.,
552 F.3d 786, 803 n.14 (9th Cir. 2008).
2. In the alternative, Glass contends that the district court abused its discretion
by refusing to consider the new evidence accompanying his surreply in opposition
to AsicNorth’s motion for summary judgment. Yet, the district court did not
2 provide AsicNorth with the opportunity to address Glass’s new evidence. “Where
new evidence is presented in a reply to a motion for summary judgment, the
district court should not consider the new evidence without giving the movant an
opportunity to respond.” Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)
(internal alteration and citation omitted). Accordingly, Glass’s challenge on this
front fails. See id.
3. Glass also insists that the district court erroneously concluded that he did not
set out a prima facie ADA discrimination claim against AsicNorth based on his
carpal tunnel syndrome.
Carpal tunnel syndrome can form the basis of an ADA discrimination claim.
Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1154–55 (9th Cir. 1999).
However, ADA plaintiffs who rely on carpal tunnel syndrome must provide
evidence that the condition substantially limits one or more of their major life
activities. Id.; see also Broussard v. Univ. of Cal., at Berkeley, 192 F.3d 1252,
1254, 1256 (9th Cir. 1999).
Glass alleges that he has carpal tunnel syndrome. His summary judgment
evidence included a declaration from Dr. Michael Wilmink, who advised that he
had treated “Glass for bone spurs that limit his major life activity of movement.”
Glass also included his own declaration, in which he stated that he informed
AsicNorth that: “I suffer from carpel [sic] tunnel and my arms hurt and that
3 [AsicNorth’s] outdated software was requiring me to do a lot of typing.”
Dr. Wilmink’s declaration cannot help Glass’s discrimination claim because
it does not discuss carpal tunnel syndrome at all, nor is there any evidence in the
record that Glass’s bone spurs are connected to his carpal tunnel syndrome. See
Broussard, 192 F.3d at 1254, 1256; Wellington, 187 F.3d at 1154. Further, Glass’s
declaration is not evidence that his carpal tunnel syndrome impairs his typing
ability, so it cannot establish a substantial limitation on a major life activity. See
Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009)
(indicating that pain, standing alone, is insufficient proof of a substantial limitation
on a major life activity); Rohr v. Salt River Project Agric. Imp. & Power Dist., 555
F.3d 850, 859 (9th Cir. 2009) (internal alteration and citation omitted) (“To survive
summary judgment, an affidavit supporting the existence of a disability must not
be merely self-serving and must contain sufficient detail to convey the existence of
an impairment.”).
Because Glass did not carry his threshold burden of providing evidence that
his carpal tunnel syndrome substantially limits at least one of his major life
activities, he failed to set out a prima facie ADA discrimination claim against
AsicNorth. For this reason, we affirm the district court’s grant of summary
judgment on that claim.
4. Glass next maintains that the district court inappropriately granted
4 AsicNorth summary judgment on his ADA retaliation claim. Here, Glass
challenges the district court’s conclusion that he failed to establish that
AsicNorth’s non-discriminatory reason for firing him was pretextual.
Plaintiffs who litigate ADA retaliation claims that reach the pretext stage
“must produce sufficient evidence to raise a genuine issue of material fact as to
whether the employer’s proffered non-discriminatory reason is merely a pretext for
discrimination.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037
(9th Cir. 2005). In addition, “circumstantial evidence of pretext must be specific
and substantial in order to survive summary judgment.” Brown v. City of Tucson,
336 F.3d 1181, 1188 (9th Cir. 2003) (internal alteration and citation omitted).
Glass initially argues that the six-week gap between his May 20, 2016,
EEOC complaint and his July 1, 2016, termination is sufficient evidence of pretext.
But a short window between protected activity and adverse employment actions,
without regard to context, cannot by itself establish pretext unless temporal
proximity directly rebuts the employer’s non-discriminatory reason for acting as it
did. See Curley v. City of N. Las Vegas, 772 F.3d 629, 634 (9th Cir. 2014) (citing
Hashimoto v. Dalton, 118 F.3d 671, 680–81 (9th Cir. 1997)). Because this six-
week gap does not, standing alone, rebut AsicNorth’s non-discriminatory “poor
performance” reason for firing Glass, we cannot reverse the district court unless
Glass points to other evidence of pretext. See id.
5 Glass also cites to his declarations that his job performance at AsicNorth
was satisfactory. And when Glass asked a supervisor about a written job
performance warning that AsicNorth issued to him, and a performance
improvement plan (PIP) that AsicNorth implemented for him, the supervisor told
Glass that “he did not agree with it.” First, “an employee’s subjective personal
judgments of [his] competence alone do not raise a genuine issue of material fact.”
Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996). Further,
the supervisor’s statement is vague and unsupported by the rest of the record.
Glass provides no details, timing, or context about the supervisor’s disagreement
with the warning and PIP. And while the timeline of events in this case supports a
finding that, for Glass’s first ninety days on the job, this supervisor had no
problems with Glass’s performance, the supervisor learned of Glass’s performance
issues soon after. Because Glass’s statement about the supervisor is vague and
devoid of context, and because the record demonstrates the supervisor’s changing
opinion of Glass’s performance, Glass has not set out a basis on which we can
justify reversal of the district court here. See Nigro v. Sears, Roebuck & Co., 784
F.3d 495, 497–98 (9th Cir. 2015) (quoting F.T.C. v. Publ’g Clearing House, Inc.,
104 F.3d 1168, 1171 (9th Cir. 1997)) (“A conclusory, self-serving affidavit,
lacking detailed facts and any supporting evidence, is insufficient to create a
genuine issue of material fact.”).
6 Glass’s last argument is that AsicNorth’s failure to adhere to the
performance evaluation process set out in its employee handbook is sufficient
evidence of pretext. In Glass’s view, although this handbook provides for new
employee performance reviews after their first ninety days, AsicNorth “never gave
Glass any performance evaluation and simply fired him six months after it hired
him.” Nevertheless, according to this handbook, AsicNorth’s new employees are
not automatically entitled to a ninety-day performance review. Also, contrary to
Glass’s assertion that he never received a performance review, AsicNorth issued
him a written warning and put him on a PIP approximately four months after he
started with the company. In addition, the record contains evidence that AsicNorth
tracked Glass’s progress on his PIP on a weekly basis for at least a month and
decided to terminate him because he failed to satisfy his PIP objectives.
Accordingly, because there is no evidence that AsicNorth deviated from its
performance review process with respect to Glass, his arguments on this point
cannot justify a reversal of the district court’s ruling that he failed to establish
pretext in this case.
Since Glass failed to provide specific and substantial circumstantial evidence
capable of creating a genuine issue of material fact on whether AsicNorth’s “poor
performance” reason for firing him was pretextual, we affirm summary judgment
on Glass’s ADA retaliation claim. Lawler v. Montblanc N. Am. L.L.C., 704 F.3d
7 1235, 1244 (9th Cir. 2013) (affirming summary judgment on pretext because the
plaintiff’s proffered evidence consisted of temporal proximity and little else).
Further, Glass’s Opening Brief mentions in passing his appeal of the district
court’s orders on Glass’s post-judgment motions. But Glass makes no specific
arguments regarding the district court’s denial of his post-judgment motions for
relief. “Arguments not raised by a party in its opening brief are deemed waived.”
Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008)
(citing Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)).
AFFIRMED.