NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELLA W. HORN, Nos. 18-16380 18-16660 Plaintiff-Appellant, D.C. No. 5:17-cv-02192-NC v.

CRC HEALTH GROUP, INC., MEMORANDUM*

Defendant-Appellee.

Appeals from the United States District Court for the Northern District of California Nathanael M. Cousins, Magistrate Judge, Presiding**

Submitted April 17, 2019***

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

In these consolidated appeals, Ella W. Horn appeals pro se from the district

court’s summary judgment in her employment action alleging violations of Title

VII and California law. We have jurisdiction under 28 U.S.C. § 1291. We review

* 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 these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). de novo. Manatt v. Bank of Am., NA, 339 F.3d 792, 796 (9th Cir. 2003). We may

affirm on any basis supported by the record, Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008), and we affirm.

The district court properly granted summary judgment on Horn’s race

discrimination and wrongful termination claims because Horn failed to raise a

genuine dispute of material fact as to whether defendant’s legitimate,

nondiscriminatory reasons for terminating her employment were pretextual. See

Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136,

1140 (9th Cir. 2001) (setting forth McDonell Douglas burden-shifting framework;

requirements for prima facie case of discrimination); Wallis v. J.R. Simplot Co., 26

F.3d 885, 890 (9th Cir. 1994) (“In response to the defendant’s offer of

nondiscriminatory reasons, the plaintiff must produce specific, substantial evidence

of pretext.” (citation and internal quotation marks omitted)); see also Merrick v.

Hilton Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir. 2017) (McDonnell Douglas

framework applies to disparate treatment claims under California Fair Employment

and Housing Act); Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1042 (9th

Cir. 2017) (McDonell Douglas framework applies to California wrongful

termination claim).

The district court properly granted summary judgment on Horn’s claim

alleging failure to prevent sexual harassment because Horn failed to raise a triable

2 18-16380 dispute as to whether the alleged conduct was sufficiently severe and pervasive to

alter the conditions of her employment. See Vasquez v. County of Los Angeles,

349 F.3d 634, 642-44 (9th Cir. 2004) (discussing requirements for a sex

discrimination claim based on harassment); Featherstone v. S. Cal. Permanente

Med. Grp., 217 Cal. Rptr. 3d 258, 272-73 (Ct. App. 2017) (“Where . . . a plaintiff

cannot establish a claim for discrimination, the employer as a matter of law cannot

be held responsible for failing to prevent same[.]”); cf. Faragher v. City of Boca

Raton, 524 U.S. 775, 788-89 (1998) (discussing employer’s liability for a

discriminatory environment “that is otherwise actionably abusive”).

The district court properly granted summary judgment on Horn’s negligent

infliction of emotional distress claim because Horn failed to raise a triable dispute

as to whether defendant breached a legal duty owed to her. See Marlene F. v.

Affiliated Psychiatric Med. Clinic, Inc., 770 P.2d 278, 281 (Cal. 1989) (elements of

a negligent infliction of emotional distress claim).

Summary judgment on Horn’s retaliation claim was proper because Horn

failed to establish a prima facie case of retaliation. See Bergene, 272 F.3d at 1140-

41 (requirements for prima facie case of retaliation).

The district court did not abuse its discretion by denying Horn’s opposition

to the bill of costs because Horn failed to overcome the presumption in favor of an

award of costs to the prevailing party. See Save Our Valley v. Sound Transit, 335

3 18-16380 F.3d 932, 944-46, 944 n.12 (setting forth standard of review and discussing district

court’s consideration of factors that would justify a refusal to award costs).

We reject as without merit Horn’s contentions regarding discovery

violations and judicial bias.

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).

All pending motions and requests are denied, including Horn’s request, set

forth in the reply brief, to strike the answering brief or sanction defendant.

AFFIRMED.

4 18-16380