Maureen Uche-Uwakwe v. R. Nicholson

dissenting:

I respectfully dissent. Even if we consider the evidence that the district court improperly excluded, Uche-Uwakwe has not raised a genuine issue of material fact that she suffered an adverse employment action.

I agree with the majority that the district court should have considered the Maze and Underwood affidavits and the EEO records that were authenticated by Greg Underwood. I also agree with the majority that, even after considering the additional evidence, summary judgment was proper on Uehe-Uwakwe’s Title VII claims for failure to promote and for hostile work environment. I disagree, however, with the majority’s analysis of the disparate treatment and retaliation claims.

A. Disparate treatment

A prima facie case of disparate treatment under Title VII requires the plaintiff to show that “(1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) similarly situated employees not in his protected class received more favorable treatment.” Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 753 (9th Cir.2010).

Uche-Uwakwe has not alleged an adverse employment action. “[A]n adverse…

MEMORANDUM *

Appellant Maureen Uche-Uwakwe (Uche-Uwakwe) alleges that she was discriminated against based on her race while working as a pharmacist for a medical center operated by Appellee Secretary of Veterans Affairs. Uche-Uwakwe challenges the district court’s order granting Appellees’ motion for summary judgment and dismissing her complaint with prejudice.

The district court acted within its discretion in sua sponte excluding evidence submitted for summary judgment that was not properly authenticated, with two exceptions. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532-33 (9th Cir. 2011). First, the district court abused its discretion in excluding the Equal Employment Opportunity (EEO) testimony of the VA Center’s EEO Manager, Sam Maze, and the VA Center’s Employee Relations Specialist, Greg Underwood, because they were signed by each witness and included a certification that complied with the requirements of 28 U.S.C. § 1746 (2).

Second, the district court abused its discretion in excluding the EEO records submitted with a declaration from Underwood because, as an employee in the Human Resources Department, Underwood had sufficient familiarity and understanding of…

FILED

NOT FOR PUBLICATION MAR 30 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAUREEN UCHE-UWAKWE, No. 10-55708

Plaintiff - Appellant, D.C. No. 5:05-cv-00983-VAP-OP

v.

MEMORANDUM*

R. JAMES NICHOLSON, Secretary of

Veteran Affairs; BRIAN KAWAHARA; CHI-LEUG CHAN, also known as Roy Chan, AKA Roy Chan; ELISA ALMERA,

Defendants - Appellees.,

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Argued and Submitted November 17, 2011 Pasadena, California

Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.

Appellant Maureen Uche-Uwakwe (Uche-Uwakwe) alleges that she was

discriminated against based on her race while working as a pharmacist for a

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. medical center operated by Appellee Secretary of Veterans Affairs. Uche-Uwakwe

challenges the district court’s order granting Appellees’ motion for summary

judgment and dismissing her…