Nestor C. Domingo v. MEGAN J. BRENNAN, Postmaster General Pacific Area United States Postal Service, Agency

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NESTOR C. DOMINGO,
Plaintiff - Appellant,
v.
MEGAN J. BRENNAN, Postmaster
General Pacific Area United States Postal
Service, Agency,*
Defendant - Appellee.
No. 13-17341
D.C. No. 3:11-cv-05333-CRB
MEMORANDUM**
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted January 20, 2016***
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Nestor C. Domingo appeals pro se from the district court’s summary
FILED
JAN 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
Megan J. Brennan has been substituted for her predecessor, Patrick R.
Donahoe, 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).

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judgment in his employment action alleging violations of Title VII. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, and may affirm on any
ground supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d
802, 811 (9th Cir. 2004). We affirm in part, vacate in part, and remand.
Summary judgment was proper on Domingo’s disparate treatment claim
because Domingo failed to raise a genuine dispute of material fact as to whether he
was subject to an adverse employment action, or whether similarly situated
individuals outside his protected class were treated more favorably. See Davis v.
Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (setting forth elements of
prima facie case of discrimination under Title VII, and explaining that an adverse
employment action is one that materially affects the compensation, terms,
conditions, or privileges of employment).
Summary judgment was proper on Domingo’s retaliation claim because
Domingo failed to raise a genuine dispute of material fact as to whether he suffered
a materially adverse action, or whether there was a causal relationship between his
Equal Employment Opportunity complaints and any such adverse actions. See
Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir.
2013) (setting forth elements of a prima facie case of retaliation under Title VII,
and explaining that the plaintiff must show that protected conduct was a but-for
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cause of the adverse employment action); see also Raad v. Fairbanks N. Star
Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (defendant’s knowledge
of protected activity is necessary for causation).
The district court properly granted summary judgment on Domingo’s hostile
work environment claim because Domingo failed to raise a genuine dispute of
material fact as to whether the alleged conduct altered the conditions of his
employment or created an abusive work environment. See Vasquez v. County of
Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004) (setting forth elements of a prima
facie case of hostile work environment under Title VII); see also Surrell v. Cal.
Water Serv. Co., 518 F.3d 1097, 1108-09 (9th Cir. 2008) (a plaintiff cannot
establish a prima facie case where he presents no evidence that comments were
based on protected characteristics); McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1113 (9th Cir. 2004) (“Simply causing an employee offense based on an isolated
comment is not sufficient to create actionable harassment under Title VII.”).
Because the district court restricted Domingo’s action to claims based on
events from March 9, 2006 through March 31, 2006, we do not consider the district
court’s conclusions or the parties’ contentions regarding whether Domingo was
discriminated or retaliated against in 2007 or 2008.
The district court did not abuse its discretion by considering route inspection
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forms because the forms were authenticated by witness Pete Breeland. See Fed. R.
Evid. 901(a), (b)(1) (providing that one way to authenticate evidence is testimony
that an item is what it is claimed to be); Sea-Land Serv., Inc. v. Lozen Int’l, LLC,
285 F.3d 808, 813 (9th Cir. 2002) (setting forth standard of review).
The district court had the authority to award costs and did not abuse its
discretion by doing so. See Russian River Watershed Prot. Comm. v. City of Santa
Rosa, 142 F.3d 1136, 1144 (9th Cir. 1998) (setting forth standards of review and
explaining that the presumption in favor of awarding costs to the prevailing party
“may only be overcome by pointing to some impropriety on the part of the
prevailing party that would justify a denial of costs”). However, the district court
awarded a total of $10,015.85, but appellee has conceded that certain fees in the
amount of $60.00 should not have been included in the award. Therefore, we
vacate the award and remand for further consideration.
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) (per curiam).
Domingo’s “Motion to Review Related Case 15-15907 Before Deciding
Case 13-17341,” filed on July 23, 2015, is denied.
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The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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