Richard Angelucci v. Alejandro Mayorkas

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2024
• Docket: 23-55246
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD ANGELUCCI, an individual, No. 23-55246

Plaintiff-Appellant, D.C. No. 3:20-cv-00435-AJB-JLB v.

ALEJANDRO N. MAYORKAS, Secretary, MEMORANDUM* United States Department of Homeland Security,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted March 28, 2024** Pasadena, California

Before: GRABER, IKUTA, and FORREST, Circuit Judges.

Plaintiff Richard Angelucci is a former Transportation Security

Administration (TSA) employee. He appeals from the summary judgment entered

in favor of his employer, Defendant Alejandro Mayorkas, in his official capacity as

* 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). the Secretary of Homeland Security, in this Title VII discriminatory discharge

action. On de novo review, CFPB v. Aria, 54 F.4th 1168, 1171 (9th Cir. 2022), we

affirm.

We assume, without deciding, that Plaintiff established a prima facie case of

discrimination under the McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), framework, thus shifting the burden to Defendant to provide a legitimate,

nondiscriminatory reason for firing Plaintiff. See Opara v. Yellen, 57 F.4th 709,

721–24 (9th Cir. 2023) (discussing shifting burden of proof). Defendant met that

burden by pointing to Plaintiff’s lack of candor in knowingly submitting to a

mortgage lender a letter, written on TSA letterhead, that contained false

information about Plaintiff’s employment history at TSA. Defendant articulated

several aggravating factors that led to Plaintiff’s firing, such as his failure to adhere

to TSA policy and his past disciplinary record, which included a previous

suspension for off-duty misconduct resulting from an arrest for felony vandalism—

unlawful conduct that reflected badly on TSA. The burden therefore shifted back

to Plaintiff to show that Defendant’s reasons were pretextual. Id. at 723–24.

Plaintiff’s proffered circumstantial evidence of pretext does not create a

genuine issue of material fact. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090,

1095 (9th Cir. 2005) (stating that circumstantial evidence of pretext must be

“specific and substantial” to survive a motion for summary judgment (citations

2 omitted)). The two TSA employees who Plaintiff argues are comparators were not

similarly situated to him because, unlike Plaintiff—whom Defendant previously

had suspended, investigated, and disciplined for vandalizing a car—neither

employee had received any prior disciplinary actions. See Vasquez v. County of

Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (stating that individuals are

similarly situated when they “display similar conduct”), as amended (Jan. 2, 2004).

For the same reason, to the extent Plaintiff relied on McGinest v. GTE Service

Corp. to establish discrimination, Plaintiff failed to carry his burden of proving that

“a discriminatory reason more likely than not motivated” the employer. 360 F.3d

1103, 1122 (9th Cir. 2004).

We also reject Plaintiff’s claim that a factual dispute exists as to who wrote

the letter that he submitted to the mortgage lender. Plaintiff previously stated,

under oath, in affidavits and a deposition that he wrote the letter. He cannot now

manufacture a factual dispute by contradicting those sworn statements and arguing

on appeal that his supervisor was the author. See Cleveland v. Pol’y Mgmt. Sys.

Corp., 526 U.S. 795, 806 (1999) (“[A] party cannot create a genuine issue of fact

sufficient to survive summary judgment simply by contradicting his or her own

previous sworn statement (by, say, filing a later affidavit that flatly contradicts that

party’s earlier sworn deposition) . . . .”); Van Asdale v. Int’l Game Tech., 577 F.3d

989, 998 (9th Cir. 2009) (same). In addition, the issue of whether Plaintiff or his

3 supervisor authored the letter is not a material fact that could affect the outcome of

the case, because Defendant’s description of Plaintiff’s conduct leading to his

firing did not opine or rely on whether Plaintiff authored the letter. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude

the entry of summary judgment.”). Similarly, that the recommending official

changed his mind about how to discipline Angelucci is not evidence of

discrimination. Id.

AFFIRMED.