FILED
NOT FOR PUBLICATION NOV 17 2009
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MATTHEW MCCALLUM, No. 08-35877
Plaintiff - Appellant, D.C. No. 3:06-cv-01834-ST
v.
MEMORANDUM *
BOISE CASCADE LLC, a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted November 4, 2009
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
Matthew McCallum appeals the district court’s summary judgment in favor
of the defendant Boise Cascade, LLC (Boise). We have jurisdiction under 28
U.S.C. § 1291, and we affirm the district court in all respects.
1. McCallum’s claims under the Americans with Disabilities Act other than
the discriminatory discharge were not administratively exhausted. See Josephs v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Pacific Bell, 443 F.3d 1050, 1061 (9th Cir. 2005). The charge he filed with the
Bureau of Labor and Industries and Equal Employment Opportunity Commission
failed to plead the operative facts necessary to support an investigation of his other
allegations. See Vasquez v. County of Los Angeles, 349 F.3d 634, 645 & n.39 (9th
Cir. 2003).
2. McCallum raised no genuine issue of material fact as to whether Boise
“regarded” him as disabled under 42 U.S.C. § 12102(2)(c) and Or. Rev. Stat.
§ 659A.100(2)(c). Even assuming he did, he offered no evidence to show that
Boise regarded his impairment as long term. See Sanders v. Arneson Prods., Inc.,
91 F.3d 1351, 1354 (9th Cir. 1996); see also 29 C.F.R. pt. 1630, app. § 1630.2(j).
3. McCallum raised no genuine issue of material fact as to his retaliation
claims brought under Or. Rev. Stat. § 654.062 and Oregon common law. Even
assuming he established a prima facie case of retaliation for his safety complaints,
he failed to rebut the legitimate, nonretaliatory reasons offered by Boise as being
pretextual. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th
Cir. 2001).
AFFIRMED.
2