Kevin Bishop v. John Potter

Court Case Details
Court Case Opinion

FILED

APR 27 2012

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS

U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KEVIN BISHOP,

No. 10-17383

Plaintiff - Appellant,

D.C. No. 2:08-cv-00726-RLH-
GWF

v.

*

**

PATRICK R. DONAHOE , Postmaster

MEMORANDUM

General, USPS; et al.,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding

***

Submitted April 17, 2012

Before:

LEAVY, PAEZ, and BEA, Circuit Judges.

1

Kevin Bishop appeals pro se from the district court’s judgment in his

employment action alleging, among other things, discrimination, harassment, and

*

Patrick R. Donahoe has been substituted for his predecessor, John E.

Potter, as Postmaster General under Fed. R. App. P. 43(c)(2).

**

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).

retaliation in violation of Title VII and the Age Discrimination in Employment Act

(“ADEA”). We review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634,

639 (9th Cir. 2004) (summary judgment); Arrington v. Wong, 237 F.3d 1066, 1069

(9th Cir. 2001) (dismissals under Fed. R. Civ. P. 12(b)(1) and (6)). We may affirm

on any ground supported by the record, Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116, 1121 (9th Cir. 2008), and we affirm.

The district court properly granted summary judgment on Bishop’s age

discrimination claim because Bishop failed to raise a genuine dispute of material

fact as to whether he was replaced by a substantially younger employee or

discharged under circumstances otherwise giving rise to an inference of age

discrimination. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207-08

(9th Cir. 2008) (elements of a prima facie case of age discrimination); see also

Stiefel v. Bechtel Corp., 624 F.3d 1240, 1245-46 (9th Cir. 2010) (co-workers’

statements concerning employment decisions were inadmissible hearsay because

co-workers had no involvement in the decisions).

The district court properly granted summary judgment on Bishop’s reverse

religious discrimination claim because Bishop failed to raise a genuine dispute of

material fact as to whether similarly situated individuals who were Mormon were

treated more favorably. See Noyes v. Kelly Servs., 488 F.3d 1163, 1168-69 (9th

2

10-17383

Cir. 2007) (elements of a prima facie case of reverse religious discrimination); see

also Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (order)

(“Conclusory, speculative testimony in affidavits and moving papers is insufficient

to raise genuine issues of fact . . . .”); Kennedy v. Allied Mut. Ins. Co., 952 F.2d

262, 266 (9th Cir. 1991) (“[A] party cannot create an issue of fact by an affidavit

contradicting his prior deposition testimony.”).

The district court properly granted summary judgment on Bishop’s

harassment claim because Bishop failed to raise a triable dispute as to whether the

alleged conduct was because of his age or religion or sufficiently severe or

pervasive to alter the conditions of his employment. See Vasquez, 349 F.3d at 642

(describing the requirements for a harassment claim).

The district court properly granted summary judgment on Bishop’s

retaliation claim because Bishop failed to raise a triable dispute as to whether he

engaged in a protected activity before his discharge. See id. at 646 (elements of a

prima facie case of retaliation); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th

Cir. 1982) (no causal link if decisionmaker is unaware of the protected activity).

The district court properly dismissed Bishop’s conspiracy claim because

Bishop failed to allege facts sufficient to show that the appellees conspired to

violate his civil rights. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30

3

10-17383

(9th Cir. 2004) (describing pleading requirements for a 42 U.S.C. § 1985 claim and

explaining that there can be no conspiracy without an underlying rights violation).

The district court properly dismissed Bishop’s remaining claims because the

district court lacked subject matter jurisdiction over them, or Bishop failed to state

a cognizable claim. See Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (“The

doctrine of sovereign immunity applies to federal agencies and federal officials

acting within their official capacities.”); Romain v. Shear, 799 F.2d 1416, 1418

(9th Cir. 1986) (per curiam) (the proper defendant in a Title VII or ADEA action

brought by a federal employee is the head of the employee’s department, agency,

or unit); Owyhee Grazing Ass’n, Inc. v. Field, 637 F.2d 694, 697 (9th Cir. 1981)

(“[C]laims against the United States for fraud or misrepresentation by a federal

officer are absolutely barred by 28 U.S.C. § 2680(h).”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, nor arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

Bishop’s remaining contentions, including those concerning the district

court’s alleged failure to review his opposition papers in their entirety, are

unpersuasive.

AFFIRMED.

4

10-17383

Referenced Cases