Tristan Justice v. Rockwell Collins, Inc.; Naresh Argarwal

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRISTAN JUSTICE,
Plaintiff-Appellant,
v.
ROCKWELL COLLINS, INC.; NARESH
ARGARWAL,
Defendants-Appellees.
No. 15-35678
D.C. No. 3:12-cv-01507-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Tristan Justice appeals pro se from the district court’s summary judgment in
his action alleging federal and state law claims in connection with his employment.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Vasquez v.
County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004). We affirm.
* 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 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-35678
The district court properly granted summary judgment on Justice’s federal
and state law unpaid wages claims because Justice failed to raise a genuine dispute
of material fact as to whether he was denied overtime pay to which he was entitled.
See 29 C.F.R. § 778.105 (“[A workweek] need not coincide with the calendar week
but may begin on any day and at any hour of the day”); Or. Admin. R. 839-020-
0030(2)(a) (defining work week as “any” seven consecutive twenty-four hour
period).
The district court properly granted summary judgment on Justice’s federal
and state law sexual harassment claims because Justice failed to raise a triable
dispute as to whether the alleged conduct was by a supervisor and whether
Rockwell Collins, Inc. (“Rockwell”) failed to take prompt and effective remedial
action. See Vance v. Ball State Univ., 133 S. Ct. 2434, 2441-42 (2013) (discussing
employer liability for Title VII claims); Holly D. v. Cal. Inst. of Tech., 339 F.3d
1158, 1169 n.15 (9th Cir. 2003) (setting forth elements of quid pro quo claim under
Title VII); Brooks v. City of San Mateo, 229 F.3d 917, 923-924 (9th Cir. 2000)
(setting forth elements of hostile work environment claim under Title VII); Mains
v. II Morrow, Inc., 877 P.2d 88, 93 (Or. Ct. App. 1994) (explaining quid pro quo
and hostile work environment claims under Oregon law).

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3 15-35678
The district court properly granted summary judgment on Justice’s federal
and state law retaliation claims for complaining about unpaid wages because
Justice failed to raise a triable dispute as to whether there was a causal connection
between any protected activity and an adverse action. See 29 U.S.C. § 215(a)(3);
Or. Rev. Stat. § 653.060; see also Lambert v. Ackerley, 180 F.3d 997, 1005-07 (9th
Cir. 1999) (explaining elements of retaliation claim under the Fair Labor Standards
Act).
The district court properly granted summary judgment on Justice’s federal
and state law retaliation claims for complaining about sexual harassment because
Rockwell articulated legitimate, non-discriminatory reasons for ending Justice’s
contract and Justice failed to raise a triable dispute as to whether those reasons
were pretextual. See Cornwell v. Electra Central Credit Union, 439 F.3d 1018,
1034-35 (9th Cir. 2006) (setting forth elements and analysis for retaliation claims
under Title VII and Oregon law).
The district court properly granted summary judgment on Justice’s
retaliation claim for complaining about workplace safety because the claim was
barred by the statute of limitations. See Or. Rev. Stat. Ann. §§ 654.062(6)(c),
659A.875(1) (one-year statute of limitations).

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4 15-35678
The district court properly granted summary judgment on Justice’s racial
discrimination claim under 42 U.S.C. § 1981 because Justice failed to raise a
triable dispute as to whether Rockwell discriminated against him on the basis of his
race. See Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir.
2008) (Ҥ 1981 creates a cause of action only for those discriminated against on
account of their race or ethnicity”).
The district court properly granted summary judgment on Justice’s
intentional infliction of emotional distress claim against Rockwell because Justice
failed to raise a triable dispute as to whether the employees’ alleged conduct
occurred within the scope of employment. See Ballinger v. Klamath P. Corp., 898
P.2d 232, 243 (Or. Ct. App. 1995) (under Oregon law an employer is liable for an
employee’s tort if the employee acts within the scope of employment).
The district court properly granted summary judgment on Justice’s
intentional infliction of emotional distress claim against Argarwal because Justice
failed to raise a triable dispute as to whether Argarwal’s alleged conduct was
extreme and outrageous, or that Argarwal intended to cause emotional distress.
See McGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995) (setting forth elements
of intentional infliction of emotional distress claim under Oregon law).

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5 15-35678
The district court properly granted summary judgment on Justice’s claim for
punitive damages against Argarwal because Justice failed to raise a triable dispute
as to whether Argarwal acted with malice or a reckless and outrageous indifference
to a highly unreasonable risk of harm. See Schwarz v. Philip Morris USA, Inc.,
355 P.3d 931, 937-38 (Or. Ct. App. 2015) (standard for awarding punitive
damages).
The district court did not abuse its discretion in denying Justice’s motion to
compel discovery, motion for sanctions, and motion to disqualify Argarwal’s
counsel. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (standard of
review for motion to compel); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297
(9th Cir. 2000) (standard of review for motion for sanctions); Unified Sewerage
Agency of Wash. Cnty., Or. v. Jelco Inc., 646 F.2d 1339, 1351 (9th Cir. 1981)
(standard of review for motion to disqualify).
The district court did not abuse its discretion in striking portions of Justice’s
declaration. See Yeager v. Bowlin, 693 F.3d 1076, 1081-82 (9th Cir. 2012) (setting
forth standard of review and explaining that under the “sham affidavit” rule, “a
party cannot create an issue of fact by an affidavit contradicting his prior
deposition testimony” (citation and internal quotation marks omitted)).

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6 15-35678
Contrary to Justice’s contention, the district court was not obligated to hold a
competency hearing or appoint a guardian ad litem before dismissing his action
because there was insufficient evidence of mental incompetence. See Allen v.
Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (a pro se civil litigant is “entitled to
a competency determination when substantial evidence of incompetence is
presented”).
We reject as unsupported by the record Justice’s contention that the district
court’s improperly considered his deposition testimony.
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
We do not consider arguments and allegations raised for the first time on
appeal, or matters not specifically and distinctly raised and argued in the opening
brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009).
AFFIRMED.

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