FILED

NOT FOR PUBLICATION

JUN 12 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH Y. ARAKAKI, No. 17-15885

Plaintiff-Appellant, D.C. No. 1:15-cv-00229-HG-RLP v.

MEGAN J. BRENNAN, Postmaster MEMORANDUM* General; UNITED STATES POSTAL

SERVICE,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Submitted June 10, 2019** Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit Judges.

Plaintiff Keith Arakaki appeals the district court’s order granting summary

judgment to his employer, the United States Postal Service, on his 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). discrimination claims brought pursuant to Title VII, 42 U.S.C. § 2000e-3. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

“We analyze Title VII claims . . . under the McDonnell Douglas

burden-shifting framework.” Weil v. Citizens Telecom Servs. Co., 922 F.3d 993,

1002 (9th Cir. 2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973)). This “formula requires that plaintiffs first establish a prima facie case

of discrimination.” Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir.

2017). “If the plaintiff succeeds in doing so, the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory

conduct.” Id. (internal quotation marks omitted). Finally, “[i]f the employer

articulates such a reason, the burden shifts back to the employee to show that the

employer’s stated reason is a pretext for discrimination.” Id. (internal quotation

marks and alterations omitted).

Viewing the undisputed record evidence in the light most favorable to

Arakaki, we agree with the district court that he failed to meet his burden on

summary judgment to establish a prima facie case of discriminatory retaliation in

response to protected activity. Specifically, we conclude that Lum’s handling of

1 The parties are familiar with the facts and arguments on appeal, so we recite them only as necessary. 2 the IMIP investigation, Tomooka’s “absence inquiry letter,” Arakaki’s change in

shift schedule, and his assignment to work on the Fourth of July did not constitute

adverse employment actions that were “reasonably likely to deter employees from

engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.

2000).

A failure to promote can constitute an adverse employment action, see, e.g.,

Breiner v. Nev. Dep’t of Corr., 610 F.3d 1202, 1207 (9th Cir. 2010), but Title VII

retaliation claims require proof of but-for causation. In other words, plaintiffs

advancing discriminatory retaliation theories must prove “that the unlawful

retaliation would not have occurred in the absence of the alleged wrongful action

or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

360 (2013). Here, Arakaki fails to establish a genuine issue for trial with respect to

causation. First, he provided no evidence establishing that two of the three hiring

board members knew about his discrimination complaints. Second, Arakaki’s only

evidence supporting causation consisted of generalized hearsay statements

regarding the third panel member. These statements appeared only in Arakaki’s

own affidavit and were not based on Arakaki’s personal knowledge. Finally, it is

undisputed that the panel in Arakaki’s case used standardized non-discriminatory

criteria to award the position. Even if Arakaki had made a prima facie showing of

3 retaliation, the Postal Service offered a legitimate non-retaliatory reason for hiring

someone else—Arakaki’s scoring on the non-discriminatory criteria was lower

than that of competing applicants—and Arakaki failed to show pretext.

Arakaki presents two additional arguments that were not included in his

complaint: (1) that the Postal Service failed to promptly provide him with a desk

and computer upon his return to work following a ten-month absence; and (2) that

he was suspended without pay for a single day when he refused to meet with his

supervisor without a union representative in attendance. These allegations cannot

independently form the basis of a retaliation claim because they were raised for the

first time in opposition to summary judgment. See Navajo Nation v. U.S. Forest

Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“[W]here, as here, the complaint does

not include the necessary factual allegations to state a claim, raising such claim in a

summary judgment motion is insufficient to present the claim to the district

court.”). Arakaki argues that these events are evidence of pretext, not separate

claims, but because Arakaki failed to establish a prima facie case of discrimination

at the initial stage of the McDonnell Douglas analysis, we need not consider

evidence of pretext.

AFFIRMED.

4