NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD A. KUMI, No. 18-16930

Plaintiff-Appellant, D.C. No. 3:17-cv-05245-LB

v.

MEMORANDUM*

CITY OF ALAMEDA,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding**

Submitted June 11, 2019***

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Richard A. Kumi appeals pro se from the district court’s summary judgment

in his employment action alleging claims under Title VII and California’s Fair

Employment and Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C.

* 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 this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291. We review de novo. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1161

(9th Cir. 2017). We affirm.

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

discrimination claims because Kumi failed to raise a genuine dispute of material

fact as to whether he was qualified for the positions for which he applied, or

whether similarly situated individuals not of his protected class were treated more

favorably. See Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir.

2018) (setting forth the elements of a prima facie case of discrimination under Title

VII); Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000) (setting forth the

elements of a prima facie case of discrimination under FEHA).

The district court properly granted summary judgment on Kumi’s retaliation

claims because Kumi failed to raise a genuine dispute of material fact as to

whether the City of Alameda’s legitimate, non-discriminatory reasons for its

actions were pretextual. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066

(9th Cir. 2003) (explaining that under Title VII the plaintiff bears the ultimate

burden of demonstrating that an employer’s legitimate, non-discriminatory reasons

are pretextual); Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005)

(under FEHA, “[i]f the employer produces a legitimate reason for the adverse

2 18-16930 employment action, the presumption of retaliation drops out of the picture and the

burden shifts back to the employee to prove intentional retaliation” (citation and

internal quotation marks omitted)).

The district court properly granted summary judgment on Kumi’s hostile

work environment claim because Kumi failed to raise a genuine dispute of material

fact as to whether any hostile conduct was engaged in “because of” his race. See

Campbell, 892 F.3d at 1016-17 (setting forth elements of a prima facie hostile

work environment claim under Title VII); Thompson v. City of Monrovia, 112 Cal.

Rptr. 3d 377, 390 (Ct. App. 2010) (setting forth elements of a prima facie hostile

work environment claim under FEHA).

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).

Kumi’s contentions concerning defendant’s alleged failure to produce

documents are unpersuasive.

AFFIRMED.

3 18-16930