FILED
NOT FOR PUBLICATION FEB 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS W. SIMPSON, No. 12-56643
Plaintiff - Appellant, D.C. No. 2:10-cv-05207-AHM-
PJW
v.
JOHN E. POTTER, Postmaster General, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted February 14, 2014**
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
Dennis Simpson sued his employer, Postmaster General John Potter, for age
and disability discrimination and retaliation, among other claims. The district court
dismissed Simpson’s age discrimination claims for lack of subject matter
*
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).
jurisdiction and subsequently granted summary judgment on the remaining claims.
Having reviewed Potter’s motion to dismiss and motion for summary judgment de
novo, Centerprise Int’l, Ltd. v. Micron Tech., Inc. (In re Dynamic Random Access
Memory (DRAM) Antitrust Litig.), 546 F.3d 981, 984 (9th Cir. 2008); Travelers
Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1137 (9th Cir. 2009), we
affirm the district court’s grant of both motions.
1. On appeal, Simpson does not mention the procedural requirements that
would give the federal court subject matter jurisdiction over his age discrimination
claims. See Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008) (discussing
procedural requirements). Thus, Simpson waived his subject matter jurisdiction
argument. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998).
2. Simpson also waived his Rehabilitation Act claims, see 29 U.S.C.
§ 794(a), because his appellate briefing fails to even allege that Potter took adverse
employment action against him solely based on disability. See Kim, 154 F.3d at
1000.
3. Simpson failed to present a genuine issue of material fact with respect to
the causal nexus between the United States Postal Service’s knowledge of
Simpson’s Equal Employment Opportunity (“EEO”) proceedings and the alleged
constructive suspension and constructive termination. See Cohen v. Fred Meyer,
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Inc., 686 F.2d 793, 796 (9th Cir. 1982) (setting forth prima facie retaliation claim).
The record reflects that Simpson’s superiors Laura Landgraf and Joel Smith
learned of Simpson’s EEO activities after his notice of removal had been issued.
Thus, the alleged constructive suspension and alleged constructive termination
could not have resulted from their knowledge of Simpson’s EEO proceedings.
4. Simpson generally claimed “legal error” with respect to the district court’s
grant of the motion to dismiss and motion for summary judgment. To the extent
Simpson intended to appeal more issues than those discussed in this disposition,
Simpson waived those issues. See Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182
(9th Cir. 2001) (finding issues waived when mentioned in a brief but not supported
by argument).
AFFIRMED.
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