FILED
NOT FOR PUBLICATION APR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEONARD L. PERALTA, No. 10-15654
Plaintiff - Appellant, D.C. No. 3:08-cv-05435-SI
v.
MEMORANDUM *
CITY AND COUNTY OF SAN
FRANCISCO; MUNICIPAL
TRANSPORTATION AGENCY,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted April 14, 2011 **
San Francisco, California
Before: GOODWIN and N.R. SMITH, Circuit Judges, and BLOCK, District
Judge.***
*
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).
***
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
1. Peralta has failed to make out a prima facie case of discrimination under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981
(“§ 1981”), and the Fair Employment and Housing Act (“FEHA”), because he has
“presented no facts to indicate that others outside of his protected class were
treated more favorably.” Foss v. Thompson, 242 F.3d 1131, 1134 (9th Cir. 2001).
2. Peralta has failed to make out a prima facie case of retaliation under the
same statutes because his complaint to Senior Operating Manager George Louie
about Britt’s “unprofessional” conduct was not a protected activity—it did not
protest an unlawful employment practice. See 42 U.S.C. § 2000e-2(a) (defining
“unlawful employment practice” as discriminating against an employee or taking
action adversely affecting an employee’s status “because of such individual’s race,
color, religion, sex, or national origin.”).
3. Peralta’s harassment claim under the FEHA fails because he has not
provided evidence that the complained-about conduct by his supervisor was “on
the basis of [his] race or national origin.” Aguilar v. Avis Rent A Car Sys., Inc., 21
Cal.4th 121, 129 (1999).
4. Peralta’s discrimination claim under article I, section 8 of California’s
constitution fails because he was not “terminated, constructively discharged, or
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threatened with termination.” Strother v. S. Cal. Permanente Med. Grp., 79 F.3d
859, 872 (9th Cir. 1996).
5. The district court did not abuse its discretion in rejecting Peralta’s objections
to four of the documents attached to appellees’ lawyer’s affidavit in support of
their motion for summary judgment because there is “evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Orr v.
Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Evid. 901(a)).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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