FILED
NOT FOR PUBLICATION MAY 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ALLAN PIERCE, Sr., No. 12-57296
Plaintiff - Appellant, D.C. No. 2:11-cv-09463-SVW-
FMO
v.
SANTA MARIA JOINT UNION HIGH MEMORANDUM*
SCHOOL DISTRICT, a municipal
government entity,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted May 5, 2015**
Pasadena, California
Before: FISHER, BEA, and FRIEDLAND, Circuit Judges.
The district court granted the defendant Santa Maria Joint Union High
School District’s motion to dismiss all of plaintiff Mark Allan Pierce’s claims
*
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).
except his Title VII claim for disparate treatment. The district court later granted
Santa Maria’s motion for summary judgment on that one remaining claim. Pierce
appeals those decisions, as well as the district court’s refusal to sanction Santa
Maria under Federal Rule of Civil Procedure 11. We have jurisdiction under 28
U.S.C. § 1291.
Santa Maria is immune from a lawsuit under 42 U.S.C. § 1983 because
Santa Maria is a state agency for purposes of the Eleventh Amendment. See
Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251 (9th Cir. 1992) (holding
California school districts are state agencies for purposes of the Eleventh
Amendment); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984) (“[I]n the absence of consent a suit in which the State or one of its agencies
or departments is named as the defendant is proscribed by the Eleventh
Amendment. This jurisdictional bar applies regardless of the nature of the relief
sought.”). The district court therefore correctly dismissed Pierce’s claims arising
under § 1983.
The district court was correct that Pierce’s complaint failed to state a claim
for discrimination under Title VII. Pierce attempts to bring a discrimination claim
on behalf of students he claims were mistreated. He does not have standing to
assert such a claim. See McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870,
2
881 (9th Cir. 2011) (explaining that a plaintiff cannot challenge discriminatory
policies under Title VII if the policies do not discriminate against the plaintiff).
Moreover, Pierce’s complaint does not adequately allege a Title VII claim that he
was demoted in retaliation for his complaints about discrimination in the school
district. Pierce acknowledges he never pleaded a Title VII retaliation claim
explicitly, but argues his complaint contains sufficient allegations to state such a
claim. Pierce does not point us to which allegations in his lengthy, disjointed
complaint he contends support a Title VII retaliation claim. We cannot do that
work for him. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957,
987 (9th Cir. 2011) (“[W]e will not manufacture arguments for an appellant, and a
bare assertion does not preserve a claim . . . .” (citation omitted)).
The district court was correct to hold Pierce failed to state a claim for a
hostile work environment under Title VII. “To prevail on a hostile workplace
claim premised on either race or sex, a plaintiff must show: (1) that he was
subjected to verbal or physical conduct of a racial or sexual nature; (2) that the
conduct was unwelcome; and (3) that the conduct was sufficiently severe or
pervasive to alter the conditions of the plaintiff’s employment and create an
abusive work environment.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642
(9th Cir. 2003). Most of Pierce’s allegations refer to hostile incidents the students
3
experienced at his school. Those allegations that concern Pierce’s experience,
taken as true, do not establish a hostile work environment. All but one of the
allegations describe incidents of racial hostility by students and are not attributable
in any way to Pierce’s employer. The one allegation that is attributable to Pierce’s
employer comes from a fellow assistant principal, not a supervisor, where that
assistant principal made a racially charged statement to a student’s grandmother
outside of Pierce’s presence. But that isolated statement is insufficient to establish
a hostile work environment. See McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1119 (9th Cir. 2004) (“If . . . the harasser is merely a coworker, the plaintiff must
prove that . . . the employer knew or should have known of the harassment but did
not take adequate steps to address it.” (citation omitted)). The co-worker’s
statement would be insufficient to establish a hostile work environment even if he
were Pierce’s supervisor. See Vasquez, 349 F.3d at 644.
The district court did not abuse its discretion in denying Pierce’s discovery
requests because they went “beyond the scope” of his disparate-treatment claim,
the sole claim that survived Santa Maria’s motion to dismiss. See Mattel, Inc. v.
Walking Mountain Prods., 353 F.3d 792, 813 (9th Cir. 2003). Nor did the district
court abuse its discretion when its refused to delay its decision on summary
judgment so Pierce could obtain further discovery. Pierce had ample opportunity
4
to obtain evidence in support of his claims. See Roberts v. McAfee, Inc., 660 F.3d
1156, 1169 (9th Cir. 2011).
The district court did not abuse its discretion when it denied Pierce’s motion
for sanctions. Islamic Shura Council of S. Cal. v. F.B.I., 757 F.3d 870, 872 (9th
Cir. 2014) (“An appellate court should apply an abuse-of-discretion standard in
reviewing all aspects of a district court’s Rule 11 determination.” (citation
omitted)). Pierce points to no authority that an attorney’s decision to give
documents to his client that the opposing party filed on a public docket somehow
constitutes sanctionable conduct. Nor could we find any.1
AFFIRMED.
1
To the extent Pierce understands himself to be making additional arguments on
appeal, such arguments were insufficiently explained to be preserved. See
Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments
made in passing and inadequately briefed are waived.”).
5