Darnell J. Nelson v. TIMOTHY F. GEITHNER, Secretary of the Treasury Department

Timothy F. Geithner has been substituted for his predecessor, Henry*
Paulson, as Secretary of the Treasury 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARNELL J. NELSON,
Plaintiff - Appellant,
v.
TIMOTHY F. GEITHNER, Secretary of
the Treasury Department,*
Defendant - Appellee.
No. 09-35940
D.C. No. 2:08-cv-01034-JCC
MEMORANDUM**
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted December 14, 2010***
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
Darnell J. Nelson, an attorney formerly employed by the Internal Revenue
Service (“IRS”), appeals pro se from the district court’s summary judgment in his
FILED
JAN 07 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-35940 2
employment action alleging race, sex, age, and disability discrimination, hostile
work environment, retaliation, and failure to accommodate. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Vasquez v. Cnty. of Los Angeles, 349
F.3d 634, 639 (9th Cir. 2003), and we affirm.
The district court properly granted summary judgment on the discrimination
and retaliation claims because Nelson failed to raise a triable issue that the IRS’s
proffered nondiscriminatory reasons for its adverse employment actions, such as
his poor performance evaluation, failure to receive a raise, placement on a
performance improvement plan, and termination, were pretextual. See id. at 640-
42, 646.
The district court properly granted summary judgment on the hostile work
environment claim because Nelson failed to raise a triable issue that he was
subjected to any conduct because of his membership in a protected class. See id. at
642.
The district court properly granted summary judgment on Nelson’s
accommodation claim because he failed to raise a triable issue as to whether he
was entitled to an accommodation for his alleged disability or whether the IRS
failed to accommodate his alleged disability. See Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1089 (9th Cir. 2002) (an employer is not required to provide the

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accommodation that the employee requests or prefers, but need only provide a
reasonable accommodation).
We do not consider Nelson’s contentions raised for the first time in his reply
brief. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).
Nelson’s remaining contentions are unpersuasive.
AFFIRMED.

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