Matthews v. City of Tempe

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2025
• Docket: 23-2976
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DUSTIN MATTHEWS, No. 23-2976 D.C. No. Plaintiff - Appellant, 2:22-cv-00407-SPL v. MEMORANDUM* CITY OF TEMPE; Ms. ADRIANNE WARD; Ms. JENNIFER CURTISS; Mr. MARCOS ROMERO; ALEXIS ALLEN,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Submitted June 18, 2025**

Before: CANBY, S.R. THOMAS, and SUNG, Circuit Judges.

Dustin Matthews appeals pro se from the district court’s summary judgment

in his employment action alleging federal and state law claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Hawn v. Exec. Jet

* 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). Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). We may affirm on any basis

supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008). We affirm.

The district court properly granted summary judgment on Matthews’s

discrimination claims because Matthews failed to raise a genuine dispute of

material fact as to whether similarly situated employees not of his protected class

were treated more favorably. See Hawn, 615 F.3d at 1156 (setting forth the

elements of a prima facie case of discrimination under Title VII); see also Ballou v.

McElvain, 29 F.4th 413, 422 (9th Cir. 2022) (setting forth the elements of a prima

facie case of discrimination under the Equal Protection Clause); Vasquez v. County

of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“[I[ndividuals are similarly

situated when they have similar jobs and display similar conduct.”).

The district court properly granted summary judgment on Matthews’s Title

VII retaliation claim because Matthews failed to raise a triable dispute as to

whether defendants’ legitimate, nondiscriminatory reasons for their actions were

pretextual. See Vasquez, 349 F.3d at 642 (stating that circumstantial evidence of

pretext must be specific and substantial); see also Kama v. Mayorkas, 107 F.4th

1054, 1061 (9th Cir. 2024) (“When there are equally likely causes of Plaintiff’s

termination that arise during the same period, temporal proximity does not

establish that unlawful discrimination more likely than not motivated the

2 23-2976 employer.” (alteration, citation, and internal quotation marks omitted)).

Summary judgment on Matthews’s First Amendment retaliation claim was

proper because Matthews failed to raise a triable dispute as to whether he engaged

in protected speech under the First Amendment. See Coszalter v. City of Salem,

320 F.3d 968, 973 (9th Cir. 2003) (explaining type of speech that is protected

under the First Amendment).

The district court properly granted summary judgment on Matthews’s

negligent infliction of emotional distress claim because Matthews failed to raise a

triable dispute as to whether he suffered a physical injury, a long-term physical

illness, or mental disturbance. See Monaco v. HealthPartners of S. Ariz., 995 P.2d

735, 738-39 (Ariz. Ct. App. 1999) (setting forth the bodily harm requirement for a

negligent infliction of emotional distress claim); see also Corales v. Bennett, 567

F.3d 554, 570 (9th Cir. 2009) (explaining that a district court is within its

discretion to grant summary judgment on a claim so long as plaintiff was on notice

that the claim was at issue).

The district court did not abuse its discretion in rejecting Matthews’s

evidentiary objections. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th

Cir. 2004) (setting forth standard of review for a district court’s evidentiary

rulings); United States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991) (explaining

that a statement offered to show the effect on the listener is not hearsay).

3 23-2976 The district court did not abuse its discretion in denying Matthews’s motion

for relief from judgment because Matthews failed to set forth any basis for relief.

See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-

63 (9th Cir. 1993) (setting forth standard of review and grounds for a motion under

Federal Rule of Civil Procedure 60(b)).

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

in the opening brief, or arguments and arguments raised for the first time on

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

AFFIRMED.

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