Lynn Davis v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2020
• Docket: 18-55077
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LYNN M. DAVIS, No. 18-55077

Plaintiff-Appellant, D.C. No. 2:16-cv-03974-AB-KS

v. MEMORANDUM** ANDREW M. SAUL*, Commissioner of Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Submitted March 3, 2020***

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Lynn M. Davis appeals pro se from the district court’s summary judgment in

* Andrew M. Saul has been substituted for his predecessor, Nancy A. Berryhill, as Commissioner of the Social Security Administration 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). her action alleging federal employment claims. 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 Davis’s retaliation

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

defendant’s legitimate, nondiscriminatory reasons for terminating Davis’s

employment were pretextual. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,

1108 (9th Cir. 2008) (elements of a retaliation claim under Title VII); Stegall v.

Citadel Broad. Co., 350 F.3d 1061, 1066, 1069-70 (9th Cir. 2004) (circumstantial

evidence of pretext must be specific and substantial).

The district court properly upheld the Merit Systems Protection Board’s

(“MSPB”) decision affirming the termination of Davis’s employment because the

MSPB’s findings were supported by substantial evidence. See Washington v.

Garrett, 10 F.3d 1421, 1428 (9th Cir. 1994) (deferential standard of review for

MSPB decision regarding validity of personnel action).

The district court did not abuse its discretion in denying Davis’s motion for

reconsideration because Davis failed to establish any basis for such relief. See Sch.

Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.

2 18-55077 1993) (setting forth standard of review and grounds for reconsideration under Fed.

R. Civ. P. 60(b)).

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).

Davis’s pending motion to extend time to file a reply brief (Docket Entry

No. 30) is denied.

AFFIRMED.

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