Stephen Ditko v. Fabiano Communications, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2021
• Docket: 20-16855
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 22 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN PAUL DITKO, No. 20-16855

Plaintiff-Appellant, D.C. No. 2:19-cv-04442-MTL

v. MEMORANDUM* FABIANO COMMUNICATIONS, INC., DBA FabCom, an Arizona corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Submitted November 15, 2021** Phoenix, Arizona

Before: CLIFTON, BRESS, and VANDYKE, Circuit Judges.

Stephen Paul Ditko appeals pro se from the district court’s summary

judgment in his employment discrimination action alleging violations of Title VII

* 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). and the Age Discrimination in Employment Act (“ADEA”). We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

“[A]lthough we review every discovery sanction for an abuse of discretion,

we give particularly wide latitude to the district court’s discretion to issue

sanctions under [Fed. R. Civ. P.] 37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The district court did not abuse its

discretion by excluding exhibits that Ditko failed to disclose to the defendant in

violation of Fed. R. Civ. P. 26(a)(1)(A)(ii). The failure to disclose was not shown

to be “substantially justified or [] harmless.” Fed. R. Civ. P. 37(c)(1).

We review the grant of summary judgment de novo. France v. Johnson, 795

F.3d 1170, 1171 (9th Cir. 2015). The district court properly granted summary

judgment on Ditko’s Title VII claims because Ditko failed to raise a genuine

dispute of material fact as to whether the severance agreement that he signed was

an invalid or unenforceable release of claims. See Nilsson v. City of Mesa, 503 F.3d

947, 952 (9th Cir. 2007) (explaining that a waiver of a federal right is valid if it is

“voluntary, deliberate, and informed” (quoting Stroman v. West Coast Grocery

Co., 884 F.2d 458, 462 (9th Cir.1989))).

The district court properly granted summary judgment on Ditko’s ADEA

claim because even if it could be concluded that Ditko made a prima facie showing

2 of discrimination, Ditko failed to raise a genuine dispute of material fact as to

whether the defendant’s legitimate, non-discriminatory reasons for discharging him

were pretextual. See France, 795 F.3d at 1173-75 (explaining burden shifting

framework for analyzing an ADEA discrimination claim, and setting forth

plaintiff’s burden in raising a genuine dispute of material fact as to pretext);

Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (“‘[S]tray’

remarks are insufficient to establish discrimination.”).

We also reject as without merit Ditko’s contentions regarding judicial bias.

“To warrant recusal, judicial bias must stem from an extrajudicial source. A

judge’s prior adverse ruling is not sufficient cause for recusal.” Taylor v. Regents

of Univ. of California, 993 F.2d 710, 712 (9th Cir. 1993) (quotation marks,

citations, and brackets omitted). Ditko points only to the unfavorable ruling in this

case and unsubstantiated allegations that the district court was “pro employer” to

suggest the district court was biased. These reasons do not suffice.

Finally, as a separate and independent basis for affirming the district court,

we note that Ditko failed to make specific arguments in his opening brief. Issues

not argued in the opening brief are waived. Brown v. Rawson-Neal Psychiatric

Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).

AFFIRMED.