Travis Lober v. Louis Dejoy

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2021
• Docket: 20-15888
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TRAVIS LOBER, No. 20-15888

Plaintiff-Appellant, D.C. No. CV-18-02640-PHX-DMF

v. MEMORANDUM* LOUIS DEJOY in his capacity as Postmaster General United States Postal Service,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Deborah M. Fine, Magistrate Judge, Presiding**

Submitted April 20, 2021***

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Travis Lober appeals pro se from the district court’s summary judgment in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). his employment action alleging violations of the Americans with Disabilities Act

(“ADA”) and Rehabilitation Act. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. L.F. v. Lake Wash. Sch. Dist. No. #414, 947 F.3d 621, 625

(9th Cir. 2020). We affirm.

Summary judgment on Lober’s disability discrimination claims was proper

because Lober failed to raise a genuine dispute of material fact as to whether

defendant’s legitimate, nondiscriminatory reasons for terminating his employment

were pretextual. See Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir.

2014) (setting forth burden-shifting framework under McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), which is applicable to ADA claims); Coons v. Sec’y

of U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (ADA analysis

applies to claim under the Rehabilitation Act).

The district court properly granted summary judgment on Lober’s retaliation

claim because Lober failed to raise a triable dispute as to whether there was a

causal connection between any protected activity and his termination. See Pardi v.

Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004) (setting forth prima facie

case of retaliation under the ADA).

The district court did not abuse its discretion by overruling Lober’s

objections to defendant’s evidence in support of summary judgment, because such

evidence was not inadmissible hearsay, or was capable of being provided in

2 20-15888 admissible form at trial. See Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 801(c)(2)

(defining hearsay as a statement offered to prove the truth of the matter asserted);

Sandoval v. County of San Diego, 985 F.3d 657, 666 (9th Cir. 2021) (at the

summary judgment stage, focus is on admissibility of contents, not admissibility of

the evidence’s form); Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060

(9th Cir. 2005) (standard of review).

To the extent the district court failed to rule on Lober’s authenticity

objections to certain exhibits, such error was harmless because summary judgment

would have been proper even if Lober’s objections had been sustained. See United

States v. George, 56 F.3d 1078, 1083 (9th Cir. 1995).

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

in the opening brief, or arguments and allegations raised for the first time on

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

AFFIRMED.

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