THEODORE TARVER, Jr. v. City of San Francisco

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Lynn S. Adelman, District Judge for the United States**
District Court for the Eastern District of Wisconsin, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEODORE TARVER, Jr.,
Plaintiff - Appellant,
v.
CITY OF SAN FRANCISCO,
Defendant - Appellee.
No. 09-17145
D.C. No. 3:08-cv-03500-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted February 17, 2011
San Francisco, California
Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**
Plaintiff-appellant Theodore Tarver, a former police officer, appeals the
district court’s grant of summary judgment to the City of San Francisco (“the
City”) in his action against the City for retaliation and discrimination under Title
FILED
FEB 28 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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VII, the Americans with Disabilities Act, the Rehabilitation Act, and the California
Fair Employment and Housing Act (“FEHA”). Tarver alleges the City retaliated
against him in connection with his applications to be rehired by the San Francisco
Police Department because he filed a prior lawsuit against the City. He also
contends the City discriminated against him because of his disability.
The district court did not err in granting summary judgment to the City on
Tarver’s retaliation claims. No reasonable jury could find a causal link between
the City’s failure to process his application and his prior lawsuit. Brooks v. City of
San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). Even if Tarver could establish a
prima facie case, he failed to raise a triable issue as to whether the City’s legitimate
reasons for not processing his applications were pretext for retaliation. Id. Tarver
did not meet the lateral hiring requirements because he was not a current active
peace officer when he applied in September 2007. The City also had legitimate
reasons to not process his application for an entry-level position because Tarver
did not meet the weight requirement and his application was incomplete.
The district court also properly granted summary judgment to the City on
Tarver’s disability claims because there was no evidence that the City perceived
him as disabled when he applied for a lateral or entry-level position. On the
contrary, the City acknowledged that he passed the physical ability test and

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recommended that he continue with the selection process. Similarly, because the
City did not regard him as disabled and Tarver did not request a reasonable
accommodation, his claim that the City did not engage in any good faith interactive
process must also fail. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir.
2000) (en banc) (“The interactive process is triggered either by a request for
accommodation by a disabled employee or by the employer’s recognition of the
need for such an accommodation.”), vacated in part on other grounds by U.S.
Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
Because Tarver fails to show that the City discriminated or retaliated against
him, he cannot state a claim under FEHA that the City failed to investigate his
complaints of retaliation or discrimination. See Trujillo v. N. Cnty. Transit Dist.,
63 Cal. App. 4th 280, 288-89 (1998) (stating that there is no cause of action for
failure to take reasonable steps necessary to prevent discrimination when there has
been a specific factual finding that no such discrimination actually occurred).
The district court properly and adequately dealt with all of Tarver’s arguments on
summary judgment.
AFFIRMED.

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