Donna Hines v. California Public Utilities Commission;

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NOT FOR PUBLICATION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
DONNA HINES,
Plaintiff - Appellant,
v.
CALIFORNIA PUBLIC UTILITIES
COMMISSION; et al.,
Defendants - Appellees.
No. 10-16867
D.C. No. 4:07-cv-04145-CW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted January 17, 2012**
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Donna Hines appeals pro se from the district court’s judgment in her
employment action against the California Public Utilities Commission (“CPUC”)
and other defendants. We have jurisdiction under 28 U.S.C. § 1291. We review de
FILED
JAN 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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novo both a grant of summary judgment and a dismissal for failure to state a claim.
Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). We affirm.
The district court properly granted summary judgment on the Title VII race
discrimination claim because Hines failed to raise a genuine dispute of material
fact as to whether the CPUC’s legitimate, nondiscriminatory reasons for not
selecting Hines for promotions were pretextual. See Villiarimo v. Aloha Island Air,
Inc., 281 F.3d 1054, 1062-63 (9th Cir. 2002).
The district court properly granted summary judgment on the Title VII
retaliation claim because Hines failed to raise a genuine dispute of material fact as
to whether she suffered an adverse employment action in retaliation for filing the
instant lawsuit, or as to whether there was a causal link between the lawsuit and the
alleged adverse employment action. See id. at 1064.
The district court properly dismissed the racial harassment claim because
Hines failed to allege facts sufficient to show that the alleged conduct was due to
her race or was sufficiently severe or pervasive to alter the conditions of her
employment. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.
2004).
The district court properly dismissed the disparate impact claim because
Hines failed to allege facts identifying a specific, facially neutral employment

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practice, or sufficient to show a causal relationship between such a practice and its
adverse impact on African-American employees. See Hemmings v. Tidyman’s
Inc., 285 F.3d 1174, 1190 (9th Cir. 2002) (discussing requirements for a plaintiff to
establish a prima facie case of disparate impact).
The district court properly dismissed the First Amendment retaliation claim
because Hines failed to allege facts sufficient to show that her speech was not
made pursuant to her official duties. See Garcetti v. Ceballos, 547 U.S. 410, 421
(2006) (“[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer
discipline.”).
The district court properly dismissed the due process claim because Hines
failed to allege facts sufficient to show that a protected liberty or property interest
was at stake. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972).
The district court did not abuse its discretion by denying Hines’ motion to
compel discovery. See Laub v. U.S. Dep’t of the Interior, 342 F.3d 1080, 1093
(9th Cir. 2003).
Hines’ remaining contentions are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued

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in the opening brief, nor 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).
Hines’ “Motion to Strike Supplemental Documents” is denied.
AFFIRMED.

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