JEFF S. MILLHEISLER, husband et al. v. Tacoma School District 10

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFF S. MILLHEISLER, husband and wife,
and the marital community composed
thereof; HARRIET L. MILLHEISLER,
husband and wife, and the marital
community composed thereof,

Plaintiffs-Appellants,

v.

TACOMA SCHOOL DISTRICT #10,

Defendant-Appellee.

No. 20-35251

D.C. No. 3:19-cv-05194-RBL

MEMORANDUM
*

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Submitted December 2, 2020
**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Jeff S. Millheisler appeals pro se from the district court’s summary judgment
in his employment action alleging various federal and state law claims. We have

*
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 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 20-35251
jurisdiction under 28 U.S.C. § 1291. We review de novo. Freeman v. Oakland
Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). We affirm.
The district court properly granted summary judgment on Millheisler’s
failure-to-accommodate and disparate treatment claims under the Americans with
Disabilities Act because Millheisler failed to raise a genuine dispute of material
fact as to whether he was qualified to continue working as a certified teacher. See
Dark v. Curry County, 451 F.3d 1078, 1088-89 (9th Cir. 2006) (“[Plaintiff] has the
burden of showing the existence of a reasonable accommodation that would have
enabled him to perform the essential functions of an available job.”).
The district court properly granted summary judgment on Millheisler’s
retaliation claims, and his Title VII claims arising from events pre-dating February
5, 2018, as barred by the statute of limitations. See 42 U.S.C. § 2000e-5(e)(1)
(Title VII complainant must file EEOC charge no later than 180 days, or
authorized state or local agency charge no later than 300 days, after alleged
unlawful practice occurred).
The district court properly granted summary judgment on Millheisler’s
claims under the Age Discrimination in Employment Act (“ADEA”) and 42 U.S.C.
§ 1981, and Title VII claims arising from events post-dating February 5, 2018,
because Millheisler failed to raise a triable dispute as to whether defendant
discriminated against him because of his age, race, or disability. See Diaz v. Eagle

3 20-35251
Produce Ltd. P’ship, 521 F.3d 1201, 1207-08 (9th Cir. 2008) (elements of an
ADEA claim); Manatt v. Bank of Am., NA, 339 F.3d 792, 797-98 (9th Cir. 2003)
(elements of prima facie hostile work environment claim under Title VII or
§ 1981).
The district court properly granted summary judgment on Millheisler’s due
process and equal protection claims because Millheisler failed to raise a triable
dispute as to whether defendant’s policy or custom violated his constitutional
rights. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (a
private entity is liable under § 1983 only if the private entity’s custom or policy
violated the plaintiff’s constitutional rights).
We reject as without merit Millheisler’s contentions that the district court
erred by consolidating his cases, denied his right to a jury trial, and was biased, and
that defendant’s declarations were submitted in bad faith.
We do not consider 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 issues raised by Millheisler in his brief which are not
supported by argument. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.
1992).
AFFIRMED.