Darrell Worthen v. HEATHER A. WILSON, Secretary of the Air Force

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRELL WORTHEN,
Plaintiff-Appellant,
v.
HEATHER A. WILSON*, Secretary of the
Air Force,
Defendant-Appellee.
No. 18-55766
D.C. Nos. 2:16-cv-03181-ODW-JC
2:15-cv-01747-ODW-JC
MEMORANDUM**
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted March 12, 2019***
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Darrell Worthen appeals pro se from the district court’s summary judgment
in his federal employment action. We have jurisdiction under 28 U.S.C. § 1291.
* Heather A. Wilson is substituted for her predecessor, Deborah Lee
James, as Secretary of the Air Force. See 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 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We
may affirm on any basis supported by the record. Hell’s Angels Motorcycle Corp.
v. McKinley, 360 F.3d 930, 933 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Worthen’s
discrimination and retaliation claims because Worthen failed to raise a genuine
dispute of material fact as to whether defendant’s legitimate, non-discriminatory
reasons for its actions were pretextual. See Aragon v. Republic Silver State
Disposal, Inc., 292 F.3d 654, 658-59 (9th Cir. 2002) (discussing elements of a
discrimination claim and burden-shifting framework under Title VII and
explaining that evidence of pretext must be specific and substantial); Cohen v.
Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (discussing elements of a
retaliation claim under Title VII).
Summary judgment on Worthen’s harassment claim was proper because
Worthen failed to raise a genuine dispute of material fact as to whether any hostile
conduct was engaged in “because of” his race, or was sufficiently severe or
pervasive to constitute harassment as a matter of law. See Manatt v. Bank of Am.,
NA, 339 F.3d 792, 798 (9th Cir. 2003) (setting forth elements of Title VII hostile
work environment claim and explaining that “simple teasing” or “offhand

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comments” will typically not amount to actionable discrimination (citation and
internal quotation marks omitted)).
We do not consider Worthen’s claims relating to the Family and Medical
Leave Act and the collective bargaining agreement because Worthen failed to raise
them in the operative complaint. We do not consider 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.

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