NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REGENA BRYANT, No. 17-56029
Plaintiff-Appellant, D.C. No. 8:16-cv-00478-DFM
v.
MEMORANDUM*
UNITEDHEALTH GROUP, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Douglas F. McCormick, Magistrate Judge, Presiding**
Submitted November 30, 2018***
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges
Regena Bryant appeals pro se from the district court’s summary judgment
and judgment following a jury trial in her employment action under Title VII and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
With the parties’ consent, a magistrate judge presided over the jury
trial. See 28 U.S.C. § 636(c); see also Fed. R. Civ. P. 73 (“[A] magistrate judge
may, if all parties consent, conduct a civil action or proceeding, including a jury or
nonjury trial.”).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Age Discrimination in Employment Act (“ADEA”). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Saman v. Robbins, 173 F.3d 1150,
1155, 1157 (9th Cir. 1999) (summary judgment and judgment as a matter of law).
We affirm.
The district court properly granted summary judgment on Bryant’s
retaliation claim because Bryant failed to raise a genuine dispute of material fact as
to causation. See Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417,
422 (9th Cir. 2013) (explaining that protected conduct must be a but-for cause of
an adverse employment action in order to support a retaliation claim).
The district court properly granted summary judgment on Bryant’s
harassment claim because Bryant failed to raise a genuine dispute of material fact
as to whether any hostile conduct was sufficiently severe or pervasive to constitute
harassment as a matter of law. See Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Bryant’s disparate
treatment claim based on the telecommuting policy because Bryant failed to raise a
genuine dispute of material fact as to whether any similarly situated employees
were treated more favorably. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,
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1156-57 (9th Cir. 2010) (individuals are similarly situated “when they have similar
jobs and display similar conduct” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Bryant’s disparate
impact claim because Bryant failed to identify any evidence as to the impact of the
telecommuting policy on a protected class. See Hemmings v. Tidyman’s Inc., 285
F.3d 1174, 1190 (9th Cir. 2002) (listing elements of a prima facie case for
disparate impact). The district court reasonably concluded that Bryant’s wrongful
termination claim was redundant of her other claims.
Contrary to Bryant’s contentions, the district court’s denial of defendants’
motion for summary judgment determined only that there were questions of fact
for the jury with respect to some of Bryant’s claims, and not that Bryant had
proved her claims as a matter of law. See Simo v. Union of Needletrades, Indus. &
Emps., 322 F.3d 602, 610 (9th Cir. 2003) (“Summary judgment is improper if there
are any genuine factual issues that properly can be resolved only by a finder of
fact. . . .” (internal quotation marks omitted)).
We do not review the district court’s denial of Bryant’s motion for summary
judgment because there was a jury trial on the merits of her race and age
discrimination claims. See Affordable Hous. Dev. Corp. v. City of Fresno, 433
F.3d 1182, 1193 (9th Cir. 2006). Bryant waived any challenge to the jury verdict
by failing to raise the issue on appeal. See Padgett v. Wright, 587 F.3d 983, 985
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n.2 (9th Cir. 2009).
The district court did not abuse its discretion in orally issuing pretrial orders
during a pretrial conference. See C.F. v. Capistrano Unified Sch. Dist., 654 F.3d
975, 984 (9th Cir. 2011) (standard of review for pretrial orders).
The district court did not abuse its discretion in ruling on the motions in
limine. See Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th
Cir. 2017) (standard of review).
The district court properly granted judgment as a matter of law on Bryant’s
demotion claim because Bryant failed to introduce evidence at trial from which a
reasonable jury could believe that defendants discriminated against her on the basis
of race or age when she was demoted, and because Bryant failed to timely file an
EEOC charge. See Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012) (elements
of ADEA claim); Hawn, 615 F.3d at 1156 (elements of prima facie Title VII
claim); Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (scope of an EEOC
investigation). To the extent that Bryant contends that the district court improperly
granted judgment as a matter of law on any additional claims, her contention is
inconsistent with the record as to what the district court actually did.
The district court properly denied Bryant’s motion for judgment as a matter
of law because significant factual issues remained for the jury. See Peralta, 744
F.3d at 1085.
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The district court did not abuse its discretion in denying Bryant’s motion to
disqualify all judges in the Central District of California. See E. & J. Gallo Winery
v. Gallo Cattle Co., 967 F.2d 1280, 1294 (9th Cir. 1992) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett, 587 F.3d at 985 n.2.
AFFIRMED.
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