Rodolfo Velasquez v. U.S. Postal Service

FILED
NOT FOR PUBLICATION JAN 06 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RODOLFO VELASQUEZ, No. 10-16274

Plaintiff - Appellant, D.C. No. 3:08-cv-02520-JSW

v.
MEMORANDUM *
PATRICK R. DONAHOE, United States
Postal Service,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Submitted December 19, 2011 **

Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

Rodolfo Velasquez appeals pro se from the district court’s summary

judgment in his employment action alleging disability discrimination in violation

of the Rehabilitation Act. We have jurisdiction under 28 U.S.C. § 1291. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Velasquez’s
request for oral argument is denied.
review de novo. Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir.

2007). We affirm.

The district court properly granted summary judgment because Velasquez

failed to raise a genuine dispute of material fact as to whether he suffered

discrimination because of his disability. See id. (“To state a prima facie case under

the Rehabilitation Act, a plaintiff must demonstrate that . . . [he] suffered

discrimination because of [his] disability.”). Even assuming that Velasquez raised

a triable dispute as to the prima facie case, Velasquez failed to raise a triable

dispute as to whether the United States Postal Service’s legitimate,

nondiscriminatory reason for assigning him to a new job position was pretextual.

See Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004)

(same analysis under Rehabilitation Act and Americans with Disabilities Act

(“ADA”)); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th

Cir. 2001) (under the ADA, if an employee establishes a prima facie case and the

employer provides a nondiscriminatory reason for its adverse action, the employee

must raise a genuine dispute of material fact as to pretext).

We are not persuaded by Velasquez’s remaining contentions, including

those regarding the district court’s decision not to allow his witness to testify at the

summary judgment hearing. See Thompson v. Mahre, 110 F.3d 716, 719 (9th Cir.

2 10-16274
1997) (“[O]rdinarily there is no such thing as an evidentiary hearing . . . on a

summary judgment motion.”).

AFFIRMED.

3 10-16274