FILED
NOT FOR PUBLICATION AUG 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL FIELD ESCANDON, No. 12-56700
Plaintiff - Appellant, D.C. No. 2:10-cv-09484-PSG-PLA
v.
MEMORANDUM*
LOS ANGELES COUNTY;
DEPARTMENT OF PUBLIC WORKS,
Department of Human Resources;
WILLIAM T. FUJIOKA, Chief Executive
Officer,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted August 12, 2014**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
*
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).
Raul Escandon appeals pro se from the district court’s order granting
summary judgment in favor of Los Angeles County, the County’s Department of
Public Works (“DPW”), the County’s Department of Human Resources, and
William T. Fujioka (collectively, “the County”). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
Escandon failed to provide sufficient evidence that his “[o]pposition,
pleadings, and submissions adequately showed that genuine triable issues remained
as to material facts.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(“[S]ummary judgment is proper if the pleadings, depositions, answers to
interrogatories . . . show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” (internal
quotation marks omitted)). On de novo review, Blue Ridge Ins. Co. v. Stanewich,
142 F.3d 1145, 1147 (9th Cir. 1998), we conclude that the district court correctly
determined that Escandon filed unauthenticated and uncorroborated documents,
some irrelevant, and others not part of his moving papers. Escandon provides no
evidence demonstrating the existence of any claim, relying instead on conjecture,
conclusory statements, and unsupported claims without evidentiary support. He
therefore did not meet his burden of proof necessary to support his claims. See
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)
2
(providing that “uncorroborated and self-serving” evidence is insufficient to
establish a genuine issue of material fact); Celotex, 477 U.S. at 322–23.
Even had he introduced sufficient evidence, Escandon’s Title VII
discrimination claim regarding the County’s alleged failure to promote him to
Senior Civil Engineer is unavailing. Because the County assumed that Escandon
presented a prima facie case, creating a presumption of discrimination, the burden
of production shifted to the County to provide a legitimate, nondiscriminatory
reason for its action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). The record demonstrates that the County offered sufficient evidence that
Escandon was passed for a promotion to Senior Civil Engineer for a
nondiscriminatory reason: his performance reviews. Escandon received an
appraisal of promotability score of 70 percent, the lowest possible qualifying score
for eligibility for a promotion, based on his rater’s evaluation as well as three years
of work performance evaluations. Escandon failed to show that this moderate
performance justification was pretextual. Consequently, the district court correctly
granted summary judgment in favor of the County on this claim.
Escandon also did not establish a genuine issue of material fact that he was
subjected to racial discrimination under Title VII when not selected for the position
of DPW Director. Escandon did not make a prima facie case of discrimination on
3
this claim because he was not qualified for the job. See McDonnell Douglas, 411
U.S. at 802 (listing whether a plaintiff “applied and was qualified for a job for
which the employer was seeking applicants” as one of the elements of establishing
a prima facie case). Absent necessary management experience, Escandon failed to
meet the minimum requirements for the Director post when he first applied in 2005
and then again in 2008.
Escandon’s claim of disparate impact under Title VII lacks a factual basis.
He provides no evidence of a significant disparate impact that is “the systemic
result of a specific employment practice.” Atonio v. Wards Cove Packing Co., Inc.,
810 F.2d 1477, 1485 (9th Cir. 1987); see also Hemmings v. Tidyman’s Inc., 285
F.3d 1174, 1190 (9th Cir. 2002) (listing the elements of a prima facie disparate
impact claim). As with Escandon’s Title VII disparate impact claim, “claims under
section 1981 require proof of intentional discrimination.” Jurado v. Eleven-Fifty
Corp., 813 F.2d 1406, 1412 (9th Cir. 1987). Because “[t]he same standards apply,
and facts sufficient to give rise to a Title VII claim are also sufficient for a section
1981 claim,” both claims fall together. Id.
Finally, Escandon’s Title VII claims are time barred under the statute of
limitations, see 42 U.S.C. § 2000e-5(e)(1), as is his Section 1983 claim, having
been raised more than two years after the employment decisions occurred, see
4
Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 & n.8 (9th Cir.
2011) (noting the two-year limitations period for Section 1983 claims).
We lack jurisdiction to consider Escandon’s state law tort claims because he
failed to meet his burden of demonstrating that he submitted a government claim to
the County. See Cal. Gov. Code §§ 900, et seq. (providing that a plaintiff suing a
California public entity for a tort must present to the entity a timely written claim
for damages).
The district court did not abuse its discretion in denying Escandon’s request
to modify its scheduling order, which it interpreted as a request for an extension of
time to conduct discovery outside of the discovery period. Given Escandon’s
multiple month delay in propounding any discovery, his failure to move to compel
responses to his discovery before the discovery cut-off, and his filing of this
motion on the last permissible day, the district court correctly determined that
Escandon had not been diligent and therefore did not have “good cause” to support
his motion. See Fed. R. Civ. Pro. 16(b)(4) (“A schedule may be modified only for
good cause and with the judge’s consent.”).
Escandon’s motion to supplement the record and requests for judicial notice
and sanctions pursuant to Federal Rule of Evidence 201 are denied.
AFFIRMED.
5