NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 13 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH COOPER, No. 23-15527

Plaintiff-Appellant, D.C. No. 3:20-cv-08346-DJH

v.

MEMORANDUM*

WINDOW ROCK UNIFIED SCHOOL

DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Submitted February 8, 2024** Phoenix, Arizona

Before: MURGUIA, Chief Judge, and HAWKINS and JOHNSTONE, Circuit Judges.

Kenneth Cooper appeals from the district court’s grant of summary

judgment in favor of Window Rock Unified School District (the “School District”)

in his employment discrimination action. 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 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. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009).

We affirm.

1. The district court did not err in granting summary judgment in favor

of the School District on Plaintiff’s Title VII race discrimination claim. Summary

judgment under Title VII is appropriate where no material issue of fact is raised.

See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 685–86 (9th Cir. 2017).

Under the McDonnell Douglas framework1, Plaintiff can likely make out a prima

facie case of discrimination, especially given that a plaintiff’s burden of proof is

incredibly low at this first step. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225

F.3d 1115, 1124 (9th Cir. 2000). At the next step of the McDonnell Douglas

framework, the School District has produced a legitimate, nondiscriminatory

reason for its decision to not renew Plaintiff’s Employment Contract: Plaintiff’s

violation of the Code of Conduct and insubordinate behavior. At the final step, the

same-actor inference applies, so Plaintiff’s “burden is especially steep” as to

pretext. Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1096 (9th Cir. 2005).

Plaintiff attempts to show pretext by reiterating his argument that non-African

American employees were not disciplined to the same extent as he was even

1 Where a plaintiff uses circumstantial evidence of disparate treatment to support their claim of employment discrimination, such claims are evaluated under the burden-shifting framework outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2 though they engaged in similar or worse conduct. But especially considering

Plaintiff’s burden under the same-actor inference, Plaintiff has failed to offer

evidence sufficient to overcome his heightened burden. Id. at 1099 (concluding

that the plaintiff “cannot rebut the ‘strong inference’ of nondiscrimination that

arises under the same-actor rule” where he did not present “evidence that would

cast doubt on [the employer’s] legitimate explanation of the decision”).

Accordingly, Plaintiff’s claim that the School District racially discriminated

against him by not renewing his Employment Contract fails at the last step of the

McDonnell Douglas framework.

2. Plaintiff’s breach of contract and retaliation claims are waived

because they were not raised in the opening brief. United States v. Ullah, 976 F.2d

509, 514 (9th Cir. 1992). Assuming Plaintiff’s hostile work environment claim is

not also waived, summary judgment is proper. Parties generally cannot assert

unpled theories for the first time at the summary judgment stage. Navajo Nation v.

United States Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008). Since Plaintiff did

not reference a hostile work environment in his Complaint and attempted to raise

this claim for the first time at the summary judgment phase, it is rejected because it

was not properly pled. Id.

AFFIRMED.

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