Anthony B. Allen v. Raley's, a California Corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY B. ALLEN,
Plaintiff-Appellant,
v.
RALEY'S, a California Corporation; et al.,
Defendants-Appellees.
No. 14-17275
D.C. No.
2:12-cv-00226-JAM-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges
Anthony B. Allen appeals pro se from the district court’s judgment, after a
jury trial, in his employment discrimination action under Title VII and California’s
Fair Employment and Housing Act (“FEHA”) against Raley’s Corp. We have
jurisdiction under 28 U.S.C. § 1291, and 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 14-17275
Allen waived his challenge to the sufficiency of the evidence supporting the
verdict on his claim of a racially hostile work environment by failing to move for
judgment as a matter of law or a new trial before the district court. See Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1088-90 (9th Cir. 2007) (holding that
to preserve a sufficiency-of-the-evidence challenge, a party must file both a pre-
verdict motion under Federal Rule of Civil Procedure 50(a) and a post-verdict
motion for judgment as a matter of law or a new trial under Rule 50(b)).
The district court properly granted summary judgment on Allen’s claim of
race discrimination. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 685
(9th Cir. 2017) (holding that grant of summary judgment is reviewed de novo).
Allen failed to raise a genuine dispute of material fact as to whether he suffered an
adverse employment action in the denial of a promotion or transfer because he did
not apply for any promotions or transfers during the relevant period. See id. at
690-91 (setting forth prima facie case of discrimination under Title VII); Godwin v.
Hunt Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998) (explaining that FEHA
mirrors Title VII). Further, viewing the evidence in the light most favorable to
Allen, the district court properly concluded that he failed to establish a prima facie
case of race discrimination based on a work-hour reduction. See Reynaga, 847
F.3d at 690-91.

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3 14-17275
The district court properly granted summary judgment on Allen’s claim of
failure to prevent discrimination under Cal. Gov’t Code § 12940(k) because the
evidence shows that Raley’s promptly investigated his complaints of harassment
and discrimination. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d
1086, 1098 (E.D. Cal. 2017) (setting forth elements of claim); Cal. Fair Emp’t &
Hous. Comm’n v. Gemini Aluminum Corp., 18 Cal. Rptr. 3d 906, 920-21 (Cal. Ct.
App. 2004) (setting forth “reasonable steps” that an employer must take to prevent
discrimination). In addition, this claim is precluded because Allen failed to
establish discrimination. See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc.,
642 F.3d 728, 748 (9th Cir. 2011) (explaining that failure-to-prevent claim is
derivative of discrimination claim).
AFFIRMED.

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