Terry Smith v. Eric Shinseki

FILED
NOT FOR PUBLICATION AUG 22 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRY T. SMITH, No. 12-55551

Plaintiff - Appellant, D.C. No. 2:11-cv-03757-JFW-
PLA
v.

Robert A. McDonald,* Secretary of MEMORANDUM**
Veteran Affairs,

Defendant - Appellee.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Submitted August 13, 2014***

Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

Terry T. Smith appeals pro se from the district court’s summary judgment

dismissing his employment action alleging race-based discrimination and

*
Robert A. McDonald has been substituted for his predecessor, Eric K.
Shinseki, as Secretary of Veteran Affairs 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).
harassment and retaliation in violation of Title VII. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Wood v. City of San Diego, 678 F.3d 1075,

1080 (9th Cir. 2012) (dismissal for failure to state a claim); Vasquez v. County of

Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004) (summary judgment). We may

affirm on any basis supported by the record, Gordon v. Virtumundo, Inc., 575 F.3d

1040, 1047 (9th Cir. 2009), and we affirm.

Summary judgment on Smith’s discrimination claim was proper because

Smith failed to raise a genuine dispute of material fact as to whether defendant

transferred Smith to a different building and then terminated his employment on

account of his race. See Vasquez, 349 F.3d at 640-42 & n.5 (listing elements of a

prima facie case of discrimination, discussing “similarly situated” individuals

requirement, and explaining that circumstantial evidence of pretext must be

specific and substantial); see also Pelletier v. Fed. Home Loan Bank of S.F., 968

F.2d 865, 872 (9th Cir. 1992) (to survive summary judgment, nonmovant

“ordinarily must furnish affidavits containing admissible evidence tending to show

the existence of a genuine dispute of material fact”).

The district court properly dismissed Smith’s disparate treatment claim

based on his June 2008 transfer as time-barred because Smith failed to contact an

Equal Employment Opportunity counselor within 45 days of the alleged adverse

2 12-55551
action. See 29 C.F.R. § 1614.105(a)(1) (“An aggrieved person must initiate

contact with a Counselor within 45 days of the date of the matter alleged to be

discriminatory or, in the case of personnel action, within 45 days of the effective

date of the action.”); see also Lyons v. England, 307 F.3d 1092, 1105 (9th Cir.

2002) (failure to comply with this forty-five day requirement is “fatal to a federal

employee’s discrimination claim”).

The district court properly dismissed Smith’s hostile work environment

claim because Smith failed to allege facts sufficient to show that the alleged

conduct was sufficiently severe or pervasive to alter the conditions of his

employment. See Vasquez, 349 F.3d at 642 (discussing the elements of a race-

based hostile work environment claim).

The district court properly dismissed Smith’s retaliation claim because

Smith failed to allege facts sufficient to show that he was subjected to an adverse

employment action because he reported race discrimination in the workplace. See

id. at 646 (elements of a prima facie case of retaliation under Title VII).

All pending motions and requests are denied.

AFFIRMED.

3 12-55551