Judy Long v. Alameda Unified School District

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUDY LONG,
Plaintiff-Appellant,
v.
ALAMEDA UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
No. 18-16131
D.C. No. 3:16-cv-06279-JST
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Judy Long appeals pro se from the district court’s summary judgment in her
employment action alleging race discrimination claims under Title VII and
California’s Fair Employment and Housing Act (“FEHA”). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051,
* 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
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment because Long failed
to raise a genuine dispute of material fact as to whether Alameda Unified School
District’s (“AUSD”) legitimate, non-discriminatory reasons for its actions were
pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-
59 (9th Cir. 2002) (discussing elements and burden-shifting framework of a
discrimination claim under Title VII and explaining that evidence of pretext must
be specific and substantial); see also Metoyer v. Chassman, 504 F.3d 919, 941 (9th
Cir. 2007) (“California courts apply the Title VII framework to claims brought
under FEHA”), abrogated on other grounds by Nat’l Ass’n of African Am.-Owned
Media v. Charter Commc’n, Inc., 915 F.3d 617 (9th Cir. 2019).
The district court did not abuse its discretion in excluding under the “sham
affidavit rule” Long’s evidence concerning an alleged phone call she received
because this evidence contradicted Long’s prior deposition testimony. See
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (standard of
review); Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009)
(explaining sham affidavit rule).
Long has waived her challenge to the district court’s cost award because

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Long failed to move the district court to review the award. See Walker v.
California, 200 F.3d 624, 626 (9th Cir. 1999) (explaining that “a party may
demand judicial review of a cost award only if such party . . . moved the district
court to review the award.”).
We reject as without merit Long’s contentions that the district court failed to
consider her evidence.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not
consider documents and facts not presented to the district court. See United States
v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to
the district court are not part of the record on appeal.”).
Long’s requests that AUSD and Stanford University be required to
“validate,” “verify,” or submit various information, set forth in her opening and
reply briefs, are denied.
AUSD’s motions to strike (Docket Entry Nos. 10 and 20) are denied as
moot.
AFFIRMED.

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