Janice Smets v. HEATHER WILSON, Secretary of the Air Force

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANICE SMETS,
Plaintiff-Appellant,
v.
HEATHER WILSON, Secretary of the Air
Force,*
Defendant-Appellee.
No. 16-56551
D.C. No. 2:15-cv-08555-JFW-JC
MEMORANDUM**
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted March 13, 2018***
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Janice Smets appeals pro se from the district court’s summary judgment in
her action alleging age discrimination and retaliation in violation of the Age
* Heather Wilson has been substituted for her predecessor, Deborah Lee
James, as Secretary of the Air Force under Fed. R. App. P. 43(c)(2).
** 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).
FILED
MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Discrimination in Employment Act (“ADEA”) and Title VII. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Vasquez v. County of Los Angeles,
349 F.3d 634, 639 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Smets’s age
discrimination claim because Smets failed to raise a genuine dispute of material
fact as to whether she was discriminated against on the basis of her age. See
Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987) (setting forth
elements of a prima facie case of age discrimination under the ADEA).
The district court properly granted summary judgment on Smets’s retaliation
claim because Smets failed to raise a genuine dispute of material fact as to whether
defendant took an adverse employment action against her. See Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006) (setting forth elements
of a prima facie case of retaliation under Title VII).
The district court properly denied Smets’s motion to remand the action to
the Equal Employment Opportunity Commission. See 29 C.F.R. § 1614.409
(“Filing a civil action . . . shall terminate Commission processing of the appeal.”).
We reject as without merit Smets’s contention that the district court lacked
jurisdiction over her action as a “mixed case” complaint or appeal under 29 C.F.R.
§ 1614.302.
We do not consider matters not specifically and distinctly raised and argued

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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).
Smets’s motion to correct the opening brief (Docket Entry No. 26) is
granted.
AFFIRMED.

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