Yomi v. Del Toro

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2026
• Docket: 24-7641
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCIS YOMI, No. 24-7641 D.C. No. Plaintiff - Appellant, 3:23-cv-05199-KKE v. MEMORANDUM*

CARLOS DEL TORO, Secretary of the Navy,

Defendant - Appellee,

and

DOJ - UNITED STATES DEPARTMENT OF JUSTICE, DOJ - OFFICE OF THE UNITED STATES ATTORNEY,

Defendants.

Appeal from the United States District Court for the Western District of Washington Kymberly K. Evanson, District Judge, Presiding

Submitted May 21, 2026**

Before: RAWLINSON, FRIEDLAND, and VANDYKE, Circuit Judges.

* 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). In this Title VII case, Plaintiff-Appellant Francis Yomi appeals the district

court’s orders (1) dismissing his motions for entry of default; (2) denying him leave

to amend his complaint; (3) compelling his deposition testimony; (4) denying his

motion to compel production of certain documents and information from the Navy;

(5) terminating Yomi’s motion for summary judgment as untimely; and (6) granting

Defendants’ motion for summary judgment. We have jurisdiction under 28

U.S.C.§ 1291 and we affirm.

1. The district court did not abuse its discretion by denying Yomi’s two

motions for entry of default. See First Idaho Corp. v. Davis, 867 F.2d 1241, 1242

(9th Cir. 1989). The district court properly denied Yomi’s first motion because

Yomi filed it before perfecting service on the Secretary of the Navy. See Fed. R.

Civ. P. 4(i). Yomi’s second motion was likewise meritless because he sought default

after Defendants had timely filed their answer. See Fed. R. Civ. P. 55(a).

2. The district court did not abuse its discretion by denying Yomi leave to

amend his complaint to add a claim that he had voluntarily withdrawn before the

Equal Employment Opportunity Commission (EEOC) in 2016. See Kamal v. Eden

Creamery, LLC, 88 F.4th 1268, 1275 (9th Cir. 2023). At the latest, Yomi received

written notice on December 6, 2020, that the EEOC would not act on this claim.

Yomi then had 90 days to file this claim in federal court. See 42 U.S.C. § 2000e-

5(f)(1) (providing that an employee has 90 days to file a claim in federal court once

2 24-7641 the EEOC provides notice that it will not act on the claim); id. §§ 2000e-16(c), (d)

(making § 2000e-5(f)(1) applicable to government employees); see also Scholar v.

Pac. Bell, 963 F.2d 264, 266–67 (9th Cir. 1992). But Yomi did not try to add the

claim into this case until 2024—several years after the limitations period had run.

Amending the complaint to add this long-time-barred claim would have been futile.

3. Yomi argues the district court abused its discretion by compelling his

deposition testimony after the Navy had already deposed him in the underlying

EEOC proceedings. See Fed. R. Civ. P. 30(a)(2)(A)(ii) (requiring a party to “obtain

leave of court” to take a deposition if “the deponent has already been deposed in the

case”). Yomi contends that the EEOC proceedings and his federal lawsuit comprise

the same “case” within the meaning of Rule 30(a)(2)(A)(ii), and that the Navy was

therefore required to seek leave from the district court before deposing him. But

Yomi does not explain why the outcome of this case would have been different had

the district court required the Navy formally to seek leave before deposing him. He

has therefore failed to show that any alleged error in compelling his deposition

absent leave warrants reversal. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,

1093 (9th Cir. 2003); Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322,

1327 (9th Cir. 1995).

4. Yomi has not made “the clearest showing” that the district court’s denial

of his motion to compel the production of certain documents and information caused

3 24-7641 him “actual and substantial prejudice.” Hallett v. Morgan, 296 F.3d 732, 751

(9th Cir. 2002) (citation modified).

5. The district court did not abuse its discretion by terminating Yomi’s

untimely motion for summary judgment. See F.T.C. v. Gill, 265 F.3d 944, 956–57

(9th Cir. 2001). Without seeking leave, Yomi filed his summary judgment motion

more than seven weeks after the deadline for dispositive motions. And in any event,

the district court considered the arguments Yomi raised in his untimely motion as

part of its consideration of his opposition to Defendants’ summary judgment motion.

6. We review de novo and affirm the district court’s grant of summary

judgment to Defendants. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112

(9th Cir. 2004). With respect to Yomi’s disparate treatment claims, the Navy amply

showed legitimate, nondiscriminatory reasons for terminating Yomi’s employment,

refusing to allow Yomi to retake the tests he failed, not transferring Yomi to another

position, and declining to hire Yomi at a higher grade. See Freyd v. Univ. of Or.,

990 F.3d 1211, 1228 (9th Cir. 2021). And Yomi failed to present “specific and

substantial” evidence that the Navy’s legitimate reasons for these actions were

pretextual. Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1282 (9th Cir. 2017)

(citation modified). While Yomi argues that similarly situated peers outside of his

protected classes were treated more favorably than he, the record shows that these

peers either performed better academically than Yomi, did not have conduct issues

4 24-7641 like Yomi, or were not treated differently than Yomi.

With respect to Yomi’s retaliation claims, the district court correctly

concluded that Yomi failed to establish a causal link between his involvement in a

protected activity and the Navy’s adverse employment decisions. See Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013); Brooks v. City of San Mateo,

229 F.3d 917, 928 (9th Cir. 2000). Yomi presented no evidence that the Navy

officials who terminated his employment or later found him ineligible to be rehired

at a higher grade took these adverse actions because Yomi had contacted the EEOC

or accused the Navy of discrimination.

AFFIRMED.

5 24-7641