Bernard Lindblom v. United States of America, ex rel Department of the Army;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARD LINDBLOM,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, ex rel
Department of the Army; et al.,
Defendants - Appellees.
No. 08-15782
D.C. No. 2:06-CV-02280-GEB-
GGH
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted February 10, 2010
San Francisco, California
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.
Bernard Lindblom appeals from the district court’s grant of summary
judgment in favor of the Secretary of the Army and other defendants (collectively
the “Army”) on Lindblom’s claims of age discrimination, retaliation, and hostile
work environment. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Summary judgment on the April 2005 denial of promotion claim was proper
FILED
FEB 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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because Lindblom failed to meet his burden of demonstrating, or raising a genuine
issue of material fact as to whether, the legitimate, nondiscriminatory reasons
articulated by the Army for not promoting him were actually a pretext for
discrimination. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir.
2005). The mere fact that Lindblom had supervisory experience does not
demonstrate the Army’s stated reasons for not promoting him were pretextual in
light of the uncontradicted evidence that the individuals the Army hired for the
WL-7 positions had significant, comparable supervisory experience, and that these
individuals performed and scored better than Lindblom during the interview and
evaluation process. Similarly, a union representative’s statements that Lindblom
should have scored higher based on his experience and did well in the interview do
not demonstrate pretext in light of that same union representative’s statements that
Lindblom did not adequately convey his experience throughout the hiring process
and that Lindblom “literally read prepared responses to the panel members.”
Furthermore, the other union representative stated that the candidates “were all
treated equally”; that there was no preferential treatment; that Lindblom should
have done better during the interview; and that Lindblom failed to mention
important elements of his experience that may have allowed him to receive a
higher score.

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Summary judgment on Lindblom’s claim of discrimination and retaliation in
relation to the WG-8 positions was proper. Lindblom neither applied for the
positions nor demonstrated that his application for the positions would have been
futile. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (holding
that to establish a claim for discrimination, a plaintiff must demonstrate that he
actually “applied and was qualified for” the position) (emphasis added); Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 365-68 (1977) (holding that a plaintiff
who did not apply for a position can still make prima facie showing if he can
demonstrate his application for the position would have been futile). Further,
Lindblom admitted that his promotion to the temporary WL-7 position was not
intended by the Army to deceive him into not applying for the WG-8 positions.
Summary judgment on Lindblom’s hostile work environment claim was
proper because the actions he complains of did not create a workplace that was
“permeated with discriminatory intimidation, ridicule, and insult,” “sufficiently
severe or pervasive to alter the conditions of [Lindblom’s] employment and create
an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (internal quotation omitted).
AFFIRMED.

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