NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUYEN L. NGUYEN, No. 14-16999
Plaintiff-Appellant, D.C. No. 5:13-cv-01847-LHK
v.
MEMORANDUM**
MARK T. ESPER,* Secretary, Department
of the Army,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted May 9, 2018***
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Huyen L. Nguyen appeals from the district court’s summary judgment in her
employment action alleging claims under Title VII. We have jurisdiction under 28
*
Mark T. Esper has been substituted for John M. McHugh as Secretary
of the Army under Federal Rule of Appellate Procedure 43(c)(2).
**
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).
U.S.C. § 1291. We review de novo, Universal Health Servs., Inc. v. Thompson,
363 F.3d 1013, 1019 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Nguyen’s
discrimination claim arising from her employment and termination. Nguyen failed
to establish a prima facie case of discrimination by raising a genuine dispute of
material fact as to whether any of the criticisms that she received constituted
adverse employment actions, and whether any similarly situated employees were
treated more favorably with respect to termination as contract service providers.
See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (providing
elements of prima facie case for employment discrimination based on disparate
treatment); Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1125-26
(9th Cir. 2000) (defining adverse employment action to include actions that
constitute a material change in the terms and conditions of employment).
The district court properly granted summary judgment on Nguyen’s
discrimination claim relating to her failure to apply for a position as a federal
General Schedule dentist. Nguyen failed to raise a genuine issue of material fact as
to whether the defendant’s legitimate, nondiscriminatory reason for how it
provided information regarding the job opening was pretext for discrimination.
See Hawn, 615 F.3d at 1158 (explaining that specific and substantial evidence of
pretext is required to defeat a motion for summary judgment).
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The district court properly granted summary judgment on Nguyen’s hostile
work environment claim because Nguyen failed to raise a genuine issue of material
fact as to whether any harassing conduct was sufficiently severe or frequent to alter
the conditions of her employment. See Manatt v. Bank of Am., NA, 339 F.3d 792,
798 (9th Cir. 2003) (stating prima facie requirements for hostile work environment
claim under Title VII); Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.
2000) (explaining that isolated comments are rarely sufficient to support a hostile
work environment claim).
The district court properly granted summary judgment on Nguyen’s
retaliation claim because Nguyen failed to raise a genuine issue of material fact as
to whether she engaged in any protected activity sufficient to support a claim of
retaliation. See Brooks, 229 F.3d at 928 (providing framework for a retaliation
claim under Title VII).
Because Nguyen failed to cite any evidence in the record in her response to
defendant’s motion for summary judgment, the district court reasonably considered
evidence in the record that it could locate and treated facts as undisputed for
purposes of summary judgment where it could not locate evidence in the record.
See Heinemann v. Satterberg, 731 F.3d 914, 916-17 (9th Cir. 2013) (concluding
that the district court may properly treat facts as undisputed for purposes of
summary judgment when the non-moving party fails to properly support an
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assertion of fact); Gordon v. Virtumondo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009)
(explaining that the district court is not required to review the record for supporting
evidence not cited by the non-moving party).
The district court did not abuse its discretion in granting defendant’s motion
to strike Nguyen’s “errata” brief because the brief was filed late, failed to comply
with local rules regarding length, and would prejudice the defendant. See
Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224 n.4 (9th
Cir. 2005) (setting forth standard of review); Leong v. Potter, 347 F.3d 1117, 1125
(9th Cir. 2003) (affirming the district court’s decision to strike a supplemental brief
that was filed late and without leave from the court).
The district court did not abuse its discretion in denying Nguyen’s motion
for an extension of time to file the Calderon declaration because it was submitted
after defendant’s response to Nguyen’s opposition to summary judgment and
would substantially prejudice the defendant. See Ahanchian v. Xenon Pictures,
Inc., 624 F.3d 1253, 1258 (9th Cir. 2010) (setting forth standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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