Thomas Finn v. City of Boulder City

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2019
• Docket: 18-15185
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THOMAS FINN, No. 18-15185

Plaintiff-Appellant, D.C. No. 2:14-cv-01835-JAD-GWF

v. MEMORANDUM* CITY OF BOULDER CITY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted March 8, 2019**

Before: WALLACE, FARRIS, and TROTT, Circuit Judges.

Thomas Finn appeals pro se from the district court’s summary judgment in

Finn’s action alleging claims under Title VII, the Family and Medical Leave Act

(“FMLA”), and state law. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Guatay Christian Fellowship v. County of San Diego, 670 F.3d

* 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). 957, 970 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment on Finn’s Title VII

retaliation claims because Finn failed to raise a genuine dispute of material fact as

to whether he engaged in protected activity or whether there was a causal link

between protected activity and any adverse employment action. See 42 U.S.C.

§ 2000e–3(a) (describing protected activity under Title VII); Cornwell v. Electra

Cent. Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006) (setting forth elements

of a prima facie retaliation claim under Title VII); Raad v. Fairbanks N. Star

Borough Sch. Dist., 323 F.3d 1185, 1197-98 (9th Cir. 2003) (decision maker’s

knowledge of protected activity necessary for causation).

Assuming without deciding that Finn raised a cognizable claim under Nev.

Rev. Stat. § 289.010-.120, the district court properly granted summary judgment

because Finn failed to present evidence showing the existence of a genuine dispute

of material fact as to whether defendants violated or engaged in activity giving rise

to procedural protections provided by the statute. See Cafasso, U.S. ex rel. v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive

summary judgment, a plaintiff must set forth non-speculative evidence of specific

facts, not sweeping conclusory allegations.”).

The district court properly granted summary judgment on Finn’s FMLA

claim because Finn failed to raise a genuine issue of material fact as to whether his

2 18-15185 “taking of FMLA-protected leave constituted a negative factor in the decision to

terminate [him].” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th

Cir. 2001).

We do not consider arguments raised for the first time on appeal or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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