NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLEN C. GRIFFIN, Nos. 15-35588
15-35909
Plaintiff-Appellant,
D.C. No. 2:13-cv-00038-RAJ;
v. D.C. No. 2:15-cv-00910-RAJ
THE BOEING COMPANY, an Illinois
corporation, MEMORANDUM*
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
In these consolidated appeals, Ellen C. Griffin appeals pro se from the
district court’s judgments in her employment actions alleging federal and state law
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment);
Palomar v. Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362, 363 (9th
Cir. 1993) (dismissal on the basis of res judicata). We may affirm on any basis
supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d
930, 933 (9th Cir. 2004). We affirm.
I. Case No. 15-35588 (“Griffin I”)
The district court properly granted summary judgment on Griffin’s Title VII
discrimination claims based on Griffin’s pay, work assignments, and termination
because Griffin failed to raise a genuine dispute of material fact as to whether
similarly situated male employees were treated more favorably, or whether
Boeing’s legitimate, non-discriminatory reasons for its actions were pretextual.
See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)
(elements of prima facie case of discrimination under Title VII); Bradley v.
Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996) (explaining that to
avoid summary judgment, a plaintiff must “produce ‘specific, substantial evidence
of pretext’”) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994)).
The district court properly granted summary judgment on Griffin’s federal
and state law Equal Pay Act claims because Griffin failed to raise a genuine
2 15-35588, 15-35909
dispute of material fact as to whether she was paid less than male employees
performing equal or substantially equal work. See E.E.O.C. v. Maricopa Cty.
Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir. 1984) (elements of prima facie case
of wage discrimination under federal Equal Pay Act); Hudson v. W. Valley Sch.
Dist. No. 208, 97 P.3d 39, 43 (Wash. Ct. App. 2004) (elements of prima facie case
of wage discrimination under Washington Equal Pay Act).
Summary judgment on Griffin’s Title VII retaliatory discharge claim was
proper because Griffin failed to raise a genuine dispute of material fact as to
whether Boeing’s legitimate, non-discriminatory reason for her termination was
pretextual. See Bergene v. Salt River Project Agric. Improvement & Power Dist.,
272 F.3d 1136, 1142 (9th Cir. 2001) (“Circumstantial evidence of pretext must be
specific and substantial in order to survive summary judgment.”); see also
Villiarimo, 281 F.3d at 1064 (elements of prima facie case of retaliation under Title
VII).
The district court did not abuse its discretion in denying Griffin’s motion to
compel discovery because Griffin failed to comply with the local rules, despite
being specifically instructed to do so. See W.D. Wash. R. 37(a)(1) (movant must
certify that he or she has attempted to meet and confer prior to filing a discovery
3 15-35588, 15-35909
motion; “[i]f the movant fails to include such a certification, the [district] court
may deny the motion without addressing the merits of the dispute”); Childress v.
Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004) (standard of review).
Griffin’s opposed motion to supplement the record on appeal, filed on
March 24, 2016, is denied.
We reject as unsupported by the record Griffin’s contentions that: (1) Judge
Jones was partial to Boeing; (2) Judge Jones concluded the evidence Griffin
submitted in opposition to Boeing’s motion for summary judgment was
inadmissible; (3) the district court ignored Griffin’s evidence; and (4) Griffin was
denied her right to a fair trial.
We do not consider arguments and evidence raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
II. 15-35909 (“Griffin II”)
The district court properly dismissed Griffin II as barred by the doctrine of
res judicata because Griffin’s claims were raised, or could have been raised, in
Griffin I, which involved the same parties and resulted in a final judgment on the
4 15-35588, 15-35909
merits. See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713-14 (9th
Cir. 2001) (stating elements of the doctrine of res judicata and noting that it bars
subsequent litigation of both claims that were raised and claims that could have
been raised in the prior action).
AFFIRMED.
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