Wanda Thomas v. RYAN D. MCCARTHY, Acting Secretary, Department of the Army

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WANDA THOMAS,
Plaintiff-Appellant,
v.
RYAN D. MCCARTHY, Acting
Secretary, Department of the Army,
Defendant-Appellee.
No. 14-16669
D.C. No.
1:12-cv-00535-LEK-KSC
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted August 14, 2017**
San Francisco, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and WATTERS,***
District Judge.
FILED
OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.

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In December, 2011, Thomas joined an action in the District of Hawaii with
nine other plaintiffs against the Secretary of the Army (the Army), alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et. seq.
and denial of Equal Protection under the Fifth Amendment.
The district court severed Thomas’s claims, and granted summary judgment
in favor of the Army on the basis that Thomas failed to exhaust her administrative
remedies and, in the alternative, that her claims failed on the merits. Thomas
moved for reconsideration, arguing that administrative exhaustion would be futile,
and, alternatively, that dismissal of her Title VII claim violated the International
Convention on the Elimination of All Forms of Racial Discrimination (Treaty),
660 U.N.T.S. 195, entered into force on January 4, 1969. The court denied
Thomas’s motion as meritless.
We review a district court’s grant of a motion for summary judgment de
novo and a denial of a motion for reconsideration for abuse of discretion. See
Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013). A district court’s
decision to order separate trials is also reviewed for an abuse of discretion. See
Rush v. Sport Chalet, Inc., 779 F.3d 973, 974 (9th Cir. 2015).
1. Treaties that are not self-executing do not create “obligations
enforceable in the federal courts.” Sosa v. Alvarez-Machain, 542 U.S. 692, 735
2

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(2004). Because Title VII cannot be preempted by a non-enforceable treaty, the
district court did not abuse its discretion in denying Thomas’s motion for
reconsideration based on the provisions of the Treaty. See Brown v. General Svcs.
Admin., 425 U.S. 820, 835 (1976) (describing Title VII as “the exclusive judicial
remedy for claims of discrimination in federal employment”).
2. We need not determine at this juncture whether a futility exception
should be read into the exhaustion requirements of Title VII because Thomas’s
“bare assertions of futility are insufficient” to demonstrate the existence of a viable
futility claim in any event. Diaz v. United Agr. Employee Welfare Ben. Plan & Tr.,
50 F.3d 1478, 1485 (9th Cir. 1995).
3. Summary judgment under Title VII is appropriate where no material
issue of fact is raised. See Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 686
(9th Cir. 2017). Because Thomas failed to raise a material issue of fact as to her
Title VII claims, the district court did not err in granting summary judgment in
favor of Defendant. As the district court noted, any conflict between Thomas and
her supervisor arose from performance issues and personal incompatibility rather
than racial discrimination. In addition, Thomas was unable to identify any
protected activity that could serve as the basis for a claim of retaliation.
3

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4. Severance of a party’s claims for a separate trial is not an abuse of
discretion if the district court determines that the party’s injuries are “distinct and
independent” from that of the other parties. See Rush, 779 F.3d at 975. As the
district court found, Thomas’s claims were distinct from those of the other
plaintiffs temporally and in terms of her work assignment. Therefore, the district
court acted within its discretion in severing Thomas’s claims.
AFFIRMED.
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