Richard A. Kumi v. City of Alameda

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD A. KUMI,
Plaintiff-Appellant,
v.
CITY OF ALAMEDA,
Defendant-Appellee.
No. 18-16930
D.C. No. 3:17-cv-05245-LB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding**
Submitted June 11, 2019***
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
Richard A. Kumi appeals pro se from the district court’s summary judgment
in his employment action alleging claims under Title VII and California’s Fair
Employment and Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 1291. We review de novo. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1161
(9th Cir. 2017). We affirm.
The district court properly granted summary judgment on Kumi’s race
discrimination claims because Kumi failed to raise a genuine dispute of material
fact as to whether he was qualified for the positions for which he applied, or
whether similarly situated individuals not of his protected class were treated more
favorably. See Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir.
2018) (setting forth the elements of a prima facie case of discrimination under Title
VII); Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000) (setting forth the
elements of a prima facie case of discrimination under FEHA).
The district court properly granted summary judgment on Kumi’s retaliation
claims because Kumi failed to raise a genuine dispute of material fact as to
whether the City of Alameda’s legitimate, non-discriminatory reasons for its
actions were pretextual. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066
(9th Cir. 2003) (explaining that under Title VII the plaintiff bears the ultimate
burden of demonstrating that an employer’s legitimate, non-discriminatory reasons
are pretextual); Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005)
(under FEHA, “[i]f the employer produces a legitimate reason for the adverse

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employment action, the presumption of retaliation drops out of the picture and the
burden shifts back to the employee to prove intentional retaliation” (citation and
internal quotation marks omitted)).
The district court properly granted summary judgment on Kumi’s hostile
work environment claim because Kumi failed to raise a genuine dispute of material
fact as to whether any hostile conduct was engaged in “because of” his race. See
Campbell, 892 F.3d at 1016-17 (setting forth elements of a prima facie hostile
work environment claim under Title VII); Thompson v. City of Monrovia, 112 Cal.
Rptr. 3d 377, 390 (Ct. App. 2010) (setting forth elements of a prima facie hostile
work environment claim under FEHA).
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).
Kumi’s contentions concerning defendant’s alleged failure to produce
documents are unpersuasive.
AFFIRMED.

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