Richard Valentine v. Chad Wolf

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2020
• Docket: 18-56337
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD R. VALENTINE, No. 18-56337

Plaintiff-Appellant, D.C. No. 3:16-cv-02357-W-KSC v.

CHAD F. WOLF, Acting Secretary, MEMORANDUM* Department of Homeland Security,

Defendant-Appellee.

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

Submitted February 5, 2020** Pasadena, California

Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.

Richard Valentine appeals the district court’s orders granting the

government summary judgment on his employment discrimination claim and

denying his request to extend the time to complete a deposition. We have

* 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). jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Stevens v.

CoreLogic, Inc., 899 F.3d 666, 672, 677 (9th Cir. 2018), cert. denied, 139 S. Ct.

1222 (2019), we affirm.

1. At the first step of the McDonnell Douglas burden-shifting framework

used to evaluate a discriminatory termination claim under Title VII, the plaintiff

must make out a prima facie case, which he can do “by offering proof that: (1) he

belongs to a protected class; (2) he was performing his job satisfactorily; (3) he

suffered an adverse employment action; and (4) his employer treated him

differently than a similarly situated employee who does not belong to the same

protected class.” Weil v. Citizens Telecom Servs. Co., 922 F.3d 993, 1003 (9th Cir.

2019). The government concedes that Valentine, who is Caucasian American,

belongs to a protected class, and we conclude that Valentine sufficiently supported

an inference that he was performing his internship satisfactorily and suffered an

adverse employment action.

We agree with the district court, however, that Valentine failed to support an

inference that a similarly situated intern outside his protected class was treated

differently. Valentine asserted that he and several other agriculture specialists

performed insufficient inspections in early 2009, and while all of them were

counseled about this mistake, he alone received a record of the counseling in his

employment file. But his second line supervisor, Rosalinda Maizuss, testified in

2 her deposition that she placed a record of the counseling in each employee’s file.

Her one-word response to an ambiguous and compound question later in the

deposition did not support an inference that she was recanting her earlier

testimony.

2. Valentine makes two related arguments regarding his objections to the

magistrate judge’s order denying his request for additional time to depose Maizuss.

First, he argues that the district court erred by failing to infer from his objections

that he “[could not] present facts essential to justify [his] opposition” to the

government’s summary judgment motion. Fed. R. Civ. P. 56(d). Because nothing

in his objections put the district court on notice that he needed the discovery to

oppose summary judgment, he has forfeited this argument. See Avila v. Travelers

Ins. Co., 651 F.2d 658, 660 (9th Cir. 1981) (“A contention by an opposing party

that he had insufficient time in which to present specific facts in opposition to the

motion normally cannot be successfully made for the first time on appeal.”).

Second, Valentine argues that the district court erred by failing to rule on his

objections. But once the district court granted summary judgment, Valentine’s

objections to the discovery order became moot. See Stevens, 899 F.3d at 676–77.

AFFIRMED.