PHILBERT v. MCDONOUGH (2021)

MEMORANDUM **

Curtis W. Philbert appeals pro se from the district court's summary judgment in his employment action alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 736 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment on Philbert's Title VII national origin discrimination, sex discrimination, and retaliation claims because Philbert failed to raise a genuine dispute of material fact as to whether the Department of Veterans Affairs’ (“VA”) legitimate, nondiscriminatory, and nonretaliatory reasons for not promoting him or reclassifying his position were pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-59 (9th Cir. 2002) (setting forth burden-shifting framework for Title VII discrimination claim; circumstantial evidence of pretext for discrimination claim must be specific and substantial); see also Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2004) (burden-shifting framework applies to Title VII retaliation claim; circumstantial evidence of pretext for retaliation claim must be specific and substantial).

The district court properly granted summary judgment on Philbert's Title VII wage discrimination claim. The VA presented evidence that Philbert did not apply for a promotion and his position did not qualify for reclassification, and Philbert failed to present evidence to the contrary. See Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986) (“When a Title VII [plaintiff] contends that [he] has been denied equal pay for substantially equal work, ․ Equal Pay Act [(‘EPA’)] standards apply.”); see also Rizo v. Yovino, 950 F.3d 1217, 1222 (9th Cir. 2020) (setting forth EPA's four exceptions for wage differential, which operate as affirmative defenses).

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).

AFFIRMED.