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addressing a plaintiff's failure to accommodate claim under the Rehabilitation Act, referencing the Samper requirements, and explaining that Rehabilitation Act and ADA claims are “evaluated by the same standards” (citing Samper, 675 F.3d at 1237 and Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 884 (9th Cir. 2004))
Summary of this case from Ortiz v. McDonoughOpinion
No. 18-15660
05-30-2019
GARY J. MARTINEZ, Plaintiff-Appellant, v. RICHARD V. SPENCER, Secretary of the Navy; JAMIE K. KALOWSKY, CMDR, Captain Pearl Harbor Navy Shipyard and Intermediate Maintenance Facility, Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 1:16-cv-00475-HG-RLP MEMORANDUM Appeal from the United States District Court for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Gary J. Martinez appeals pro se from the district court's summary judgment and dismissal order in his employment action alleging claims arising from defendants' alleged failure to accommodate his disability. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (summary judgment); Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003) (motion to dismiss). We affirm.
The district court properly dismissed Martinez's Title VII claim against defendant Kalowsky because there is no individual liability under Title VII. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993).
The district court properly granted summary judgment on Martinez's hostile work environment claim because Martinez failed to raise a genuine dispute of material fact as to whether the alleged conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004) (setting forth elements of a hostile work environment claim under Title VII).
The district court properly granted summary judgment on Martinez's Rehabilitation Act claim because Martinez failed to raise a genuine dispute of material fact as to whether Martinez was a qualified individual able to perform the essential functions of his job as a painter helper. See 42 U.S.C. § 12111(8) (defining qualified individual); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (setting forth requirements for a failure-to-accommodate claim); see also Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (Rehabilitation Act and Americans with Disabilities Act claims evaluated by the same standards).
The district court properly granted summary judgment on Martinez's Privacy Act claim because he failed to raise a genuine dispute of material fact as to whether Martinez suffered actual damages for purposes of the Privacy Act. See FAA v. Cooper, 566 U.S. 284, 299 (2012) (limiting Privacy Act suits to actual damages, which the Court defined as proven pecuniary or economic harm).
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).
Martinez's motion to review the entire judicial record (Docket Entry No. 17) is denied as unnecessary.
AFFIRMED.