Frederick J. Killian v. Ashton B. Carter

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDERICK J. KILLIAN,
Plaintiff-Appellant,
v.
ASHTON B. CARTER,* et al.
Defendants-Appellees.
No. 15-56297
D.C. No. 3:12-cv-00828-JLS-DHB
MEMORANDUM**
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted December 14, 2016***
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Frederick J. Killian appeals pro se from the district court’s summary
judgment in his employment action alleging discrimination in violation of the
* Ashton B. Carter is substituted for his predecessor, Leon Panetta, as
Secretary of Defense 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
DEC 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-56297
Age Discrimination in Employment Act (“ADEA”). We have jurisdiction under
28 U.S.C. § 1291. We review de novo, Cotton v. City of Alameda, 812 F.2d 1245,
1247 (9th Cir. 1987), and we affirm.
The district court properly granted summary judgment because Killian failed
to raise a genuine dispute of material fact as to whether defendant’s legitimate,
non-discriminatory reason for declining to interview or hire him was pretext for
discrimination on the basis of Killian’s age. See France v. Johnson, 795 F.3d
1170, 1173-75 (9th Cir. 2015) (explaining burden shifting framework for analyzing
an ADEA claim on summary judgment, and setting forth plaintiff’s burden in
raising a genuine dispute of material fact as to pretext); see also Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1284-85 (9th Cir. 2000) (concluding stray
remarks by members of management and unwise business judgments were not
sufficient to raise a genuine dispute of material fact as to whether defendant’s
proffered reasons were pretextual).
We reject as without merit Killian’s contentions regarding the district court’s
failure to hold a trial and handling of discovery.
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).

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3 15-56297
Killian’s request that the court vacate testimony, set forth in his opening
brief, is denied.
Killian’s scheduling request, filed on June 20, 2016, is denied as
unnecessary.
AFFIRMED.

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