NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINCENT A. DE LUNA, No. 18-16680

Plaintiff-Appellant, D.C. No. 2:17-cv-01052-JAD-VCF v.

SUNRISE HOSPITAL AND MEDICAL MEMORANDUM*

CENTER, LLC,

Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted March 5, 2020 San Francisco, California

Before: WARDLAW, M. SMITH, and BUMATAY, Circuit Judges.

Vincent De Luna appeals from the district court’s order granting summary

judgment on his race, age, and disability discrimination claims against his former

employer, Sunrise Hospital and Medical Center, LLC. De Luna also challenges

the denial of his motion for leave to file supplemental evidence under the local

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. rules. Because the parties are familiar with the relevant facts, we do not recount

them here. We review an order granting summary judgment de novo, Wallis v.

J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994), and an application of the

district court’s local rules for abuse of discretion, Guam Sasaki Corp. v. Diana’s

Inc., 881 F.2d 713, 715–16 (9th Cir. 1989). We affirm the district court’s order.

1. Summary judgment was proper on De Luna’s disability discrimination

claim. De Luna failed to present sufficient evidence that he was fired “on the

basis of disability”—rather than for his repeated and egregious violations of

Sunrise’s punctuality policy. 42 U.S.C. § 12112(a); see also Murray v. Mayo

Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019) (holding that a plaintiff must show

“but for” causation). Indeed, De Luna was tardy at least 24 times in his last 12

months of employment. Thus, he cannot show that his alleged disability was the

“but for” cause of his termination.

De Luna contends that Sunrise selectively enforced its punctuality policy

against him because of his disability. Yet De Luna adduced no evidence

demonstrating that Sunrise treated similarly situated, non-disabled employees

more favorably than him. Instead, he relies on the attendance records of an

employee whose tardiness was significantly less than De Luna’s. See Hawn v.

Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (explaining that

employees must be similarly situated “in all material respects”) (citation omitted).

2 This leaves De Luna with nothing more than the conclusory statements in his

declaration alleging disparate treatment—which are insufficient to create a

genuine dispute of material fact. See Brown v. City of Tucson, 336 F.3d 1181,

1188 (9th Cir. 2003) (“Under Ninth Circuit law, circumstantial evidence of pretext

must be specific and substantial in order to survive summary judgment.”)

(emphasis added) (simplified).

2. De Luna’s failure-to-accommodate claim is equally without merit

because he offered insufficient evidence to show that he notified Sunrise of his

need for a disability-related accommodation. See Brown v. Lucky Stores, Inc., 246

F.3d 1182, 1188–89 (9th Cir. 2001) (holding that an employer generally has no

duty to provide an accommodation unless one is requested). De Luna’s threadbare

declaration is contradicted by the documentary evidence in the record, which

shows that De Luna failed to mention his disability each time he communicated

with Sunrise about his schedule or tardiness. In fact, De Luna consistently

admitted to Sunrise that his tardiness was caused by factors wholly unrelated to his

alleged disability, such as “traffic” and “difficulty sleeping from spreading

[him]self too thin.” On this record, De Luna’s conclusory declaration is at most a

mere “scintilla” of evidence, which is not enough to defeat summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

3. De Luna’s claims of race and age discrimination fare no better. De

3 Luna’s repeated violations of Sunrise’s punctuality policy counter any suggestion

that he was performing satisfactorily and according to his employer’s legitimate

expectations. See Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th

Cir. 2008) (recognizing that age discrimination plaintiffs must show that they were

“performing [their] job satisfactorily”); Godwin v. Hunt Wesson, Inc., 150 F.3d

1217, 1220 (9th Cir. 1998) (recognizing that a prima facie case for race

discrimination must include a showing that the plaintiff was “performing according

to [the] employer’s legitimate expectations”).

4. Finally, the district court acted within its discretion to deny De Luna

leave to file a supplemental witness declaration after the completion of summary

judgment briefing. The district court’s local rules required De Luna to show “good

cause” for submitting such late evidence. See D. Nev. LR 7-2(g). He failed to do

so. Accordingly, the district court did not abuse its discretion in denying De

Luna’s motion for leave to file the supplemental declaration.

AFFIRMED.

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