NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAMINA McKENZIE, No. 17-55850
Plaintiff-Appellant, D.C. No. 5:16-cv-00769-JGB-DTB
v.
MEMORANDUM*
SAN JOAQUIN VALLEY COLLEGE,
INC.; RICHARD MATLEY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Adamina McKenzie appeals pro se from the district court’s summary
judgment in her employment action alleging violations of Title VII and California
law. 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1033 (9th Cir. 2005), and
we affirm.
The district court properly granted summary judgment on McKenzie’s
constructive wrongful termination claim under California law because McKenzie
failed to raise a genuine dispute of material fact as to whether her adverse working
conditions were unusually aggravated or amounted to a continuous pattern. See
Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1027 (Cal. 1994) (“In order to
amount to a constructive discharge, adverse working conditions must be unusually
aggravated or amount to a continuous pattern before the situation will be deemed
intolerable.” (internal quotation marks omitted)).
The district court properly granted summary judgment on McKenzie’s
discrimination claims under Title VII and California law because McKenzie failed
to establish a prima facie case. See Cornwell v. Electra Cent. Credit Union, 439
F.3d 1018, 1028 (9th Cir. 2006) (prima facie case of discrimination under Title
VII); Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000) (prima facie case of
discrimination under the California Fair Employment and Housing Act (“FEHA”)).
Because McKenzie did not establish a claim for discrimination, the district court
also properly granted summary judgment on McKenzie’s failure to prevent
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discrimination claim under California law. See Featherstone v. S. Cal. Permanente
Med. Grp., 217 Cal. Rptr. 3d 258, 272 (Cal. App. 2017) (“Where . . . a plaintiff
cannot establish a claim for discrimination, the employer as a matter of law cannot
be held responsible for failing to prevent same[.]”).
The district court properly granted summary judgment on McKenzie’s
retaliation claims under Title VII and California law, including her claim under
California Labor Code section 1102.5(b), because McKenzie failed to establish a
prima facie case. See Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d
417, 422 (9th Cir. 2013) (prima facie case of retaliation under Title VII); Yanowitz
v. L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005) (prima facie case of
retaliation under FEHA); Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30, 48
(Cal. 2006) (applying the same requirements to retaliation claims under Cal. Labor
Code § 1102.5(b)).
The district court properly granted summary judgment on McKenzie’s
hostile work environment claims under Title VII and California law because
McKenzie failed to raise a triable dispute as to whether the conduct complained of
was sufficiently severe or pervasive. See Manatt v. Bank of Am., NA, 339 F.3d
792, 798 (9th Cir. 2003) (to establish a claim under Title VII the conduct must be
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“sufficiently severe or pervasive to alter the conditions of . . . employment and
create an abusive work environment” (citation omitted)); Lyle v. Warner Bros.
Television Prods., 132 P.3d 211, 219-20 (Cal. 2006) (establishing a claim under
FEHA requires the same).
Contrary to McKenzie’s contention, she was not entitled to a hearing on
defendants’ motion for summary judgment. See Fed. R. Civ. P. 78.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
McKenzie’s motion to transmit physical exhibits (Docket Entry No. 4) is
denied as unnecessary.
AFFIRMED.
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