Norma McCauley v. Fry's Food & Drug Stores Inc.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 27 2022 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORMA O. McCAULEY, No. 19-17497 Plaintiff-Appellant, D.C. No. 2:18-cv-04116-DWL

v.

MEMORANDUM*

FRY’S FOOD & DRUG STORES INCORPORATED, DBA Fry’s Marketplace; JOE HARRISS, supervisor; UNKNOWN PARTIES, named as Art, supervisor; named as Dennis, supervisor,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Norma O. McCauley appeals pro se from the district court’s judgment dismissing her employment action alleging federal discrimination and retaliation

*

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).

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). We affirm.

The district court properly dismissed McCauley’s claims alleging discrimination or retaliation that occurred while she was at work because McCauley failed to allege any acts that occurred within 300 days of filing her charge with the Equal Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(e)(1) (Title VII of the Civil Rights Act); 29 U.S.C. § 626(d)(1) (Age Discrimination in Employment Act).

The district court properly dismissed McCauley’s claim for unlawful discharge under the Americans with Disabilities Act (“ADA”) because McCauley failed to allege facts sufficient to show that she had a disability and that she could perform the essential functions of her job. See 42 U.S.C. §§ 12102(1)-(2) (defining “disability”); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996) (setting forth elements of a discrimination claim under the ADA).

The district court did not abuse its discretion by dismissing McCauley’s complaint without leave to amend because further amendment would be futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on

2 19-17497

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

AFFIRMED.

3 19-17497