Lisa Washington v. Lowe's Hiw, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

LISA WASHINGTON, No. 16-15608

Plaintiff-Appellant, D.C. No. 3:14-cv-02984-CRB

v.
MEMORANDUM*
LOWE’S HIW, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Submitted May 24, 2017**

Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

Lisa Washington appeals pro se from the district court’s summary judgment

in her employment action under Title VII, the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), and California state law. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Zetwick v. County of Yolo, 850 F.3d 436,

*
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).
440 (9th Cir. 2017). We affirm.

The district court properly granted summary judgment on Washington’s sex

discrimination claim because Washington failed to raise a genuine dispute of

material fact as to whether her ineligibility for a raise and termination were

pretextual. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219-20 (9th Cir.

1998) (noting that the burden-shifting framework under McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), applies to sex discrimination claims under

California’s Fair Employment and Housing Act (“FEHA”) and Title VII, and

setting forth elements of the claims).

The district court properly granted summary judgment on Washington’s

hostile work environment claims because Washington failed to raise a triable

dispute as to whether the alleged sexual harassment was sufficiently severe or

pervasive to alter the conditions of Washington’s employment. Ariz. ex rel. Horne

v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (quoting Kortan v. Cal.

Youth Auth., 217 F.3d 1104, 1109-10 (9th Cir. 2000); see also Zetwick, 850 F.3d at

442 n.1 (elements of a hostile work environment claim under FEHA and Title VII).

The district court properly granted summary judgment on Washington’s

equal pay claim under 29 U.S.C. § 206 and California Labor Code § 1197.5

because Washington failed to raise a triable dispute as to whether she was

receiving different wages than employees of the opposite sex for substantially

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equal work. See Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999)

(elements of prima facie case under 29 U.S.C. § 206); Green v. Par Pools Inc., 111

Cal. App. 4th 620, 623-24 (2003) (elements of prima facie case under Cal. Lab.

Code § 1197.5).

The district court properly granted summary judgment on Washington’s

retaliation claim because Washington failed to establish a prima facie case of

retaliation. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276,

1284 (9th Cir. 2001) (explaining that retaliation analysis under Title VII and FEHA

uses the McDonnell Douglas burden-shifting framework and setting forth elements

of these claims).

The district court properly granted summary judgment on Washington’s

RICO claim because Washington did not raise a genuine dispute of material fact as

to whether defendant undertook a “racketeering activity.” Grimmett v. Brown, 75

F.3d 506, 510 (9th Cir. 1996) (elements of civil RICO claim).

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).

Washington’s request for appointment of counsel, set forth in the opening

and reply briefs, is denied.

AFFIRMED.

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