Richard Ng v. John Snow

FILED
NOT FOR PUBLICATION MAR 04 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RICHARD T. NG, No. 08-56878

Plaintiff - Appellant, D.C. No. 2:06-cv-00578-AG-PLA

v.
MEMORANDUM **
TIMOTHY F. GEITHNER, Secretary of
the Treasury * and US ATTORNEY’S
OFFICE,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding

Submitted February 15, 2011 ***

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Richard T. Ng, an Internal Revenue Service (“IRS”) agent, appeals pro se

*
Timothy F. Geithner has been substituted for his predecessor, John W.
Snow, as Secretary of the Treasury under Fed. R. App. P. 43(c)(2).

** This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
from the district court’s judgment following a jury trial and partial summary

judgment in his employment action alleging retaliation, hostile work environment,

and disability discrimination. We have jurisdiction under 28 U.S.C. § 1291. We

review for an abuse of discretion the district court’s denial of a motion for a new

trial. Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010). We review de novo the

district court’s grant of summary judgment. Ray v. Henderson, 217 F.3d 1234,

1239 (9th Cir. 2000). We affirm.

Ng waived any challenge to the district court’s denial of his post-verdict

motion for judgment as a matter of law by failing to make the motion at the close

of his case. See Fed. R. Civ. P. 50(a)-(b); Tortu v. Las Vegas Metro. Police Dep’t,

556 F.3d 1075, 1083 (9th Cir. 2009) (“Failing to make a Rule 50(a) motion before

the case is submitted to the jury forecloses the possibility of considering a Rule

50(b) motion.”); Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089-90 (9th

Cir. 2007) (appellant waived challenge under Rule 50 by not properly bringing

motion in district court).

The district court did not abuse its discretion in denying Ng’s motion for a

new trial because the verdict was not against the weight of the evidence. See Kode,

596 F.3d at 612 (“[W]here the basis of a Rule 59 ruling is that the verdict is not

against the weight of the evidence, the district court’s denial of a Rule 59 motion is

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virtually unassailable. In such cases, we reverse for a clear abuse of discretion

only where there is an absolute absence of evidence to support the jury’s verdict.”

(citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Ng’s other

retaliation claims because he failed to raise a genuine issue of material fact as to

whether a causal link existed between his protected activity and the IRS’s decisions

to deny him certain promotions, or as to whether the IRS’s legitimate, non-

retaliatory reasons for its actions on Employee Recognition Day were pretextual.

See Ray, 217 F.3d at 1240.

The district court properly granted summary judgment on Ng’s disability

claims because he failed to raise a genuine issue of material fact as to whether he

was disabled or regarded as disabled. See Walton v. U.S. Marshals Serv., 492 F.3d

998, 1009 (9th Cir. 2007) (plaintiff failed to raise a genuine issue of material fact

that employer regarded her as substantially limited in major life activity of

working); see also Brownfield v. City of Yakima, 612 F.3d 1140, 1146-47 (9th Cir.

2010) (permissible for employer to require psychological exam for employee who

had exhibited highly emotional responses on numerous occasions).

Ng’s remaining contentions are unpersuasive.

We do not consider Ng’s contentions raised for the first time on appeal or in

3 08-56878
his reply brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

We grant Ng’s requests for judicial notice. We deny Ng’s request for

injunctive relief.

AFFIRMED.

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