Xiao Dan Koshar; John Koshar v. Raytheon Company;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO DAN KOSHAR; JOHN KOSHAR,
Plaintiffs-Appellants,
v.
RAYTHEON COMPANY; et al.,
Defendants-Appellees.
No. 20-16432
D.C. No. 4:20-cv-00119-JGZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Xiao Dan Koshar and John Koshar appeal pro se from the district court’s
order dismissing their action alleging federal and state law employment
* 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
APR 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discrimination claims.1 We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We affirm.
The district court properly dismissed plaintiffs’ discrimination claims under
Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Arizona
Civil Rights Act (“ACRA”) because plaintiffs failed to allege facts sufficient to
state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (a plaintiff
fails to show she is entitled to relief if the complaint’s factual allegations “do not
permit the court to infer more than the mere possibility of [the alleged]
misconduct”); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)
(“[A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must
prove . . . that age was the ‘but-for’ cause of the challenged adverse employment
action.”); Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (recognizing
that the ACRA is “generally identical” to Title VII and that Title VII case is
persuasive in the interpretation of ACRA); Costa v. Desert Palace, Inc., 299 F.3d
838, 847-48 (9th Cir. 2002) (concluding that a protected characteristic must be a
motivating factor for a Title VII discrimination claim).
The district court did not abuse its discretion in denying plaintiffs’ motion to
1 Xiao Dan Koshar and John Koshar are a married couple. The employment claims
in this case arise from allegations related to Xiao Dan Koshar, and John Koshar’s
claims are derivative of his wife’s claims.

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proceed in forma pauperis (“IFP”) because plaintiffs did not demonstrate that they
were unable to pay the court’s filing fee due to poverty or indigency. See
Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (setting forth standard
of review and explaining that an affidavit is sufficient under 28 U.S.C. § 1915(a) if
it states that “the affiant cannot pay the court costs and still afford the necessities of
life”).
We reject as meritless plaintiffs’ contentions that the district judge was
prejudiced or biased.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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