FILED
NOT FOR PUBLICATION JUL 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HENRY EKWEANI and IJEAMAKA No. 10-15536
EKWEANI,
D.C. No. 2:08-cv-01101-FJM
Plaintiffs - Appellants,
v. MEMORANDUM *
AMERIPRISE FINANCIAL, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Henry Ekweani and Ijeamaka Ekweani appeal pro se from the district court’s
summary judgment in their action against Mr. Ekweani’s former employer. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
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).
grant of summary judgment. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103
(9th Cir. 2008). We review for an abuse of discretion a district court’s denial of a
motion for reconsideration. MacDonald v. Grace Church Seattle, 457 F.3d 1079,
1081 (9th Cir. 2006). We affirm.
The district court properly granted summary judgment on Mr. Ekweani’s
retaliation and disparate treatment claims because Mr. Ekweani failed to raise a
genuine dispute of material fact as to whether his complaint about Ameriprise’s use
of subjective and unfair factors in employment decisions constituted protected
activity, and as to whether Ameriprise’s legitimate, nondiscriminatory reasons for
its adverse employment actions were pretextual. See Surrell, 518 F.3d at 1105-06,
1108.
The district court did not abuse its discretion in denying Mr. Ekweani’s
motion for reconsideration of the order granting summary judgment on his
retaliation and disparate treatment claims because Mr. Ekweani failed to show
grounds warranting reconsideration. See D. Ariz. L.R. 7.2(g) (reconsideration
requires “a showing of manifest error or a showing of new facts or legal authority
that could not have been brought to its attention earlier with reasonable diligence”).
The district court did not abuse its discretion in construing Ameriprise’s
motion in limine, regarding the statute of limitations on Mr. Ekweani’s failure-to-
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promote claim, as a successive motion for summary judgment. See Hoffman v.
Tonnemacher, 593 F.3d 908, 911-12 (9th Cir. 2010).
The district court properly granted summary judgment on Mr. Ekweani’s
failure-to-promote claim under 42 U.S.C. § 1981 because Mr. Ekweani failed to
raise a genuine dispute of material as to whether the promotion he sought
constituted an opportunity for a new and distinct relationship with Ameriprise and,
therefore, a two-year statute of limitations applied and his claim was time-barred.
See Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 & n.5 (9th Cir. 2004) (for
§ 1981 claim, courts borrow the most appropriate state limitations period, which is
two years in Arizona, unless the claim was made possible by a federal statute
enacted after December 1, 1990); Rodriguez v. Gen. Motors Corp., 27 F.3d 396,
399-400 (9th Cir. 1994) (before the Civil Rights Act of 1991, a failure to promote
claim was viable under § 1981 “only if the new position entailed an opportunity for
‘a new and distinct relation between the employee and the employer,’ such as an
increase in pay, the addition of supervisory duties, or a change in the chain of
responsibility” (quoting Patterson v. McClean Credit Union, 491 U.S. 164, 185
(1989)).
The district court did not abuse its discretion in dismissing Mrs. Ekweani
pursuant to the parties’ stipulation. See Fed. R. Civ. P. 41(a); Eitel v. McCool, 782
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F.2d 1470, 1471-73 (9th Cir. 1986) (setting forth standard of review and affirming
under Rule 41(a)).
We do not consider plaintiffs’ contentions raised for the first time on appeal.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Plaintiffs’ remaining contentions are unpersuasive.
AFFIRMED.
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