Robert Scott v. Ray Mabus

MEMORANDUM

Plaintiff-Appellant Robert Scott (“Scott”) appeals the district court’s grant of summary judgment for the Secretary of the Navy (“Navy”). A district court’s decision to grant summary judgment is reviewed de novo. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir.2011). We have jurisdiction under 28 U.S.C. § 1291 , and affirm in part and vacate in part.

I

The district court properly found that Scott failed to establish a prima facie case of race discrimination. Scott did not set forth any evidence of similarly situated persons of a different race that the Navy treated more favorably. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258-59 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981). To the contrary, Scott was terminated while on probation, and other non-probationary employees were disciplined for similar misconduct.

We also reject Scott’s suggestion that his prior employment with the Transportation Security Administration (“TSA”) satisfies his probationary period. See 5 C.F.R. § 315.802 (b). Scott concedes his previous employment with the TSA ended in May 2004, and he was not hired by the Navy until April 2007, which exceeds a 30-day break in service under 5…