FILED

NOT FOR PUBLICATION

JUL 8 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAMBLE TAYLOR, No. 20-35345

Plaintiff-Appellant, D.C. No. 3:18-cv-05622-RJB

v.

MEMORANDUM*

LOWE’S CORPORATION, a North Carolina Corporation, doing business in Washington,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Submitted July 6, 2021** Seattle, Washington

Before: HAWKINS, CLIFTON, and IKUTA, Circuit Judges.

* 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). Tamble Taylor appeals the district court’s order granting summary judgment

in favor of Lowe’s Corporation. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm in part and dismiss in part.

Lowe’s is entitled to summary judgment on Taylor’s claims that Lowe’s

discriminated against him on the basis of race and age under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 623(a)(1); and the Washington Law

Against Discrimination (WLAD), Wash. Rev. Code § 49.60.180(2), in terminating

his employment. Even assuming Taylor established a prima facie case of

discrimination, Lowe’s proffered a legitimate, nondiscriminatory reason for firing

him: he committed a Class A violation of company policy. See Coleman v.

Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). Taylor has not pointed to

“specific and substantial” circumstantial evidence raising a genuine issue of

material fact that this proffered reason is pretext for discrimination. Brown v. City

of Tucson, 336 F.3d 1181, 1188 (9th Cir. 2003) (cleaned up).

Lowe’s is entitled to summary judgment on Taylor’s claim for wrongful

discharge in violation of public policy (WDVPP). See Rose v. Anderson Hay &

Grain Co., 358 P.3d 1139, 1143 (Wash. 2015). Taylor stated in his deposition that

he did not make a complaint to Lowe’s regarding its failure to interview him for a

2 delivery manager position; nor did he complain that this failure was due to

discrimination on the basis of race or age. Accordingly, even assuming the

WDVPP claim is not waived, Taylor failed to raise a genuine issue of material fact

that his making a report of discrimination was a significant factor in Lowe’s

decision to terminate him. See Martin v. Gonzaga Univ., 425 P.3d 837, 844

(Wash. 2018).

Lowe’s is entitled to summary judgment on Taylor’s race and age

discrimination claim under Title VII, the ADEA, and the WLAD, concerning

Lowe’s decision not to hire him as a delivery manager. Even assuming Taylor

included this claim in his federal complaint and did not waive it, Taylor’s Title VII

and ADEA claims are unexhausted, because Taylor did not mention these claims in

his Washington State Human Rights Commission (WSHRC) complaint, and thus

did not mention them in his Equal Employment Opportunity Commission

complaint, Sanchez v. Pac. Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998),

which was necessary for purposes of exhaustion, B.K.B. v. Maui Police Dep’t, 276

F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002); 29 U.S.C.

§ 626(d)(1)(B); 42 U.S.C. § 2000e-5(e)(1). Any WLAD claim was untimely,

because Taylor filed his federal complaint in August 2018, more than three years

3 after Lowe’s failed to interview him for the delivery manager position in July

2015. See Wash. Rev. Code § 4.16.080(2).

Lowe’s is entitled to summary judgment on Taylor’s retaliation claim

because, even assuming Taylor included this claim in his federal complaint, Taylor

failed to raise it in his WSHRC complaint, and thus failed to exhaust it. 42 U.S.C.

§ 2000e-5(e)(1); 29 U.S.C.§ 626(d)(1); Sanchez, 147 F.3d at 1099.

The remaining claims raised in Taylor’s opening brief on appeal were not

raised to the district court and rely on evidence that was not before the district

court. We dismiss these waived claims.1

AFFIRMED IN PART, DISMISSED IN PART.2

1 We remind Taylor’s counsel that, “save in unusual circumstances, we consider only the district court record on appeal.” Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (cleaned up); see also Fed. R. App. P. 10(a). 2 Taylor’s Request for the Court to Take Judicial Notice, Dkt. No. 19, is

GRANTED.

4