Regena Bryant v. Unitedhealth Group, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2018
• Docket: 17-56029
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENA BRYANT, No. 17-56029

Plaintiff-Appellant, D.C. No. 8:16-cv-00478-DFM

v. MEMORANDUM* UNITEDHEALTH GROUP, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Douglas F. McCormick, Magistrate Judge, Presiding**

Submitted November 30, 2018***

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges

Regena Bryant appeals pro se from the district court’s summary judgment

and judgment following a jury trial in her employment action under Title VII and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** With the parties’ consent, a magistrate judge presided over the jury trial. See 28 U.S.C. § 636(c); see also Fed. R. Civ. P. 73 (“[A] magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial.”). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the Age Discrimination in Employment Act (“ADEA”). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Saman v. Robbins, 173 F.3d 1150,

1155, 1157 (9th Cir. 1999) (summary judgment and judgment as a matter of law).

We affirm.

The district court properly granted summary judgment on Bryant’s

retaliation claim because Bryant failed to raise a genuine dispute of material fact as

to causation. See Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417,

422 (9th Cir. 2013) (explaining that protected conduct must be a but-for cause of

an adverse employment action in order to support a retaliation claim).

The district court properly granted summary judgment on Bryant’s

harassment claim because Bryant failed to raise a genuine dispute of material fact

as to whether any hostile conduct was sufficiently severe or pervasive to constitute

harassment as a matter of law. See Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and

conditions of employment.” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Bryant’s disparate

treatment claim based on the telecommuting policy because Bryant failed to raise a

genuine dispute of material fact as to whether any similarly situated employees

were treated more favorably. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,

2 17-56029 1156-57 (9th Cir. 2010) (individuals are similarly situated “when they have similar

jobs and display similar conduct” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Bryant’s disparate

impact claim because Bryant failed to identify any evidence as to the impact of the

telecommuting policy on a protected class. See Hemmings v. Tidyman’s Inc., 285

F.3d 1174, 1190 (9th Cir. 2002) (listing elements of a prima facie case for

disparate impact). The district court reasonably concluded that Bryant’s wrongful

termination claim was redundant of her other claims.

Contrary to Bryant’s contentions, the district court’s denial of defendants’

motion for summary judgment determined only that there were questions of fact

for the jury with respect to some of Bryant’s claims, and not that Bryant had

proved her claims as a matter of law. See Simo v. Union of Needletrades, Indus. &

Emps., 322 F.3d 602, 610 (9th Cir. 2003) (“Summary judgment is improper if there

are any genuine factual issues that properly can be resolved only by a finder of

fact. . . .” (internal quotation marks omitted)).

We do not review the district court’s denial of Bryant’s motion for summary

judgment because there was a jury trial on the merits of her race and age

discrimination claims. See Affordable Hous. Dev. Corp. v. City of Fresno, 433

F.3d 1182, 1193 (9th Cir. 2006). Bryant waived any challenge to the jury verdict

by failing to raise the issue on appeal. See Padgett v. Wright, 587 F.3d 983, 985

3 17-56029 n.2 (9th Cir. 2009).

The district court did not abuse its discretion in orally issuing pretrial orders

during a pretrial conference. See C.F. v. Capistrano Unified Sch. Dist., 654 F.3d

975, 984 (9th Cir. 2011) (standard of review for pretrial orders).

The district court did not abuse its discretion in ruling on the motions in

limine. See Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th

Cir. 2017) (standard of review).

The district court properly granted judgment as a matter of law on Bryant’s

demotion claim because Bryant failed to introduce evidence at trial from which a

reasonable jury could believe that defendants discriminated against her on the basis

of race or age when she was demoted, and because Bryant failed to timely file an

EEOC charge. See Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012) (elements

of ADEA claim); Hawn, 615 F.3d at 1156 (elements of prima facie Title VII

claim); Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (scope of an EEOC

investigation). To the extent that Bryant contends that the district court improperly

granted judgment as a matter of law on any additional claims, her contention is

inconsistent with the record as to what the district court actually did.

The district court properly denied Bryant’s motion for judgment as a matter

of law because significant factual issues remained for the jury. See Peralta, 744

F.3d at 1085.

4 17-56029 The district court did not abuse its discretion in denying Bryant’s motion to

disqualify all judges in the Central District of California. See E. & J. Gallo Winery

v. Gallo Cattle Co., 967 F.2d 1280, 1294 (9th Cir. 1992) (standard of review).

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

in the opening brief. See Padgett, 587 F.3d at 985 n.2.

AFFIRMED.

5 17-56029