FILED
NOT FOR PUBLICATION
NOV 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN KAHEANA CHANG, M.D., No. 14-15230
Plaintiff - Appellant, D.C. No. 1:12-cv-00617-DKW-
RLP
v.
MEMORANDUM*
STRAUB CLINIC AND HOSPITAL,
INC.; JOHN DOES, 1 to 5; DOE
PARTNERSHIPS, 1 to 5; DOE
CORPORATIONS, 1 to 5; DOE
GOVERNMENTAL ENTITIES, 1 to 5,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted October 20, 2016
Honolulu, Hawaii
Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.
Appellant Melvin Chang, M.D., appeals from the district court’s judgment
granting Appellee Straub Clinic and Hospital, Inc.’s (Straub) motion for summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment and denying Chang’s subsequent motion for reconsideration. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo a district court’s summary judgment. Whitman v.
Mineta, 541 F.3d 929, 931 (9th Cir. 2008). A district court’s denial of a motion for
reconsideration is reviewed for abuse of discretion. Sch. Dist. No. 1J, Multnomah
Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
In his retaliation claim, Chang did not carry his burden under the first prong
of the McDonnell-Douglas test to make a prima facie showing of causation. See
Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994). It is possible to raise
an inference of causation by showing that the decision-maker knew of the
employee’s protected activity. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 (9th
Cir. 1982). Here, however, there is no evidence that Randy Yates, the person who
fired Chang, knew that his advocacy was based on a belief that Straub was
discriminating. There is therefore no basis for concluding that Yates knew Chang
engaged in protected activity. Nor is there evidence that any Straub employee who
knew of Chang’s activity participated in the decision to terminate him. See id. at
797 n.5.
Chang cannot rely on temporal proximity to raise an inference of causation
because the three-plus year gap between his activity and his termination is too
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great. See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th
Cir. 2006) (eight-month gap was “too great to support an inference” of causation).
Chang argues that his email to Ray Vara and his telephone call with Linda Cazinha
in the months before his termination were protected activity, but there was no
mention of discrimination in either communication. Finally, Chang’s “unpleasant
dealings” with Straub’s CEO do not amount to a “pattern of antagonism.” See
Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 895 (9th Cir. 2004). Accordingly, the
district court did not err in granting summary judgment on this claim.
Regarding Chang’s intentional infliction of emotional distress claim, his
response to the summary judgment motion did not address Straub’s argument that
his claim is barred by Hawaii’s workers’ compensation statute. He has therefore
waived this issue. Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000).
Although we have discretion to consider Chang’s argument, there are no
“exceptional circumstances” that move us to do so. Baccei v. United States, 632
F.3d 1140, 1149 (9th Cir. 2011).
Chang also has not shown that the district court abused its discretion in
denying his motion for reconsideration. He has not identified any “newly
discovered evidence” or “intervening change in controlling law,” nor has he
demonstrated that the district court’s order was clearly erroneous or “manifestly
3
unjust.” Sch. Dist. No. 1J, 5 F.3d at 1263. We therefore affirm the district court’s
summary judgment and denial of reconsideration.
AFFIRMED.
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