Polk v. Lucky Stores, Inc.

21 F. App'x 637

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2001
• Docket: No. 99-56703; D.C. No. CV-97-08693-NM
• Status: Published

Opinion

MEMORANDUM

**

The duties to which Polk was assigned were within his job description as a journeyman clerk and were located at a store near his home. When given the assignment his response was “fQine. No problem ... I will work the milk box if requested,” and when he did eventually express dissatisfaction with the assignment, Lucky modified it. Obviously, somebody has to work in the milkbox, and Polk has failed to present evidence that he was singled out for particularly onerous duty. He has failed to show that the way he was treated is “reasonably likely to deter [employees] from engaging in protected activity.”Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.2000). Accordingly, Polk has failed to establish a prima facie case of retaliation. See Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 (9th Cir.1997).

Because Polk raised the claim that Lucky’s delay in reinstating him after a suspension constituted retaliation only in opposing summary judgment, we do not consider that claim. See Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 n. 5 (9th Cir.1987).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.