Filed: Nov. 18, 2016
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 18 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JERRY HILL, No. 14-35388 Plaintiff-Appellant, D.C. No. 3:12-cv-00574-AC v. MEMORANDUM* RAND BEERS, Secretary, United States Department of Homeland Security, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding Argued and Submitted November 9, 2016 Portland, Oregon Before: McKEOWN,
Summary: NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 18 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JERRY HILL, No. 14-35388 Plaintiff-Appellant, D.C. No. 3:12-cv-00574-AC v. MEMORANDUM* RAND BEERS, Secretary, United States Department of Homeland Security, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding Argued and Submitted November 9, 2016 Portland, Oregon Before: McKEOWN, W..
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JERRY HILL, No. 14-35388
Plaintiff-Appellant, D.C. No. 3:12-cv-00574-AC
v.
MEMORANDUM*
RAND BEERS, Secretary, United States
Department of Homeland Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted November 9, 2016
Portland, Oregon
Before: McKEOWN, W. FLETCHER and FISHER, Circuit Judges.
Jerry Hill appeals an adverse judgment on his claim under the Age
Discrimination in Employment Act (ADEA). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
To establish a prima facie case of failure to hire on the basis of age under the
ADEA, plaintiffs must demonstrate they were within the protected class of
individuals, they applied for a position for which they were qualified and a
younger person with similar qualifications was hired for the position. See Cotton
v. City of Alameda,
812 F.2d 1245, 1248 (9th Cir. 1987).
Hill’s challenge to the agency’s June 27, 2007 decision to advertise the
position fails. The June 27 decision was not a hiring decision but an interim step in
the overall hiring process. It was not therefore a separately actionable adverse
employment action under the ADEA. Cf. Brooks v. City of San Mateo,
229 F.3d
917, 929-30 (9th Cir. 2000) (holding a negative performance evaluation “was not
an adverse employment action because it was subject to modification by the city”).
Hill’s challenge to the government’s ultimate hiring decision fails because
he neither applied for the position nor presented evidence from which a reasonable
jury could find he reasonably believed applying would have amounted to a futile
gesture. See Stiefel v. Bechtel Corp.,
624 F.3d 1240, 1246 (9th Cir. 2010); Reed v.
Lockheed Aircraft Corp.,
613 F.2d 757, 761-2 (9th Cir. 1980). In the declaration
he submitted to the district court, Hill said he believed applying would have been
futile because the government had already rejected his application once. This
evidence is insufficient. The mere fact that the government decided not to hire him
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through a closed process, without more, would not have led a reasonable person in
Hill’s position to believe applying for the position on a competitive basis would
have been futile.
Hill argues applying would have been futile for additional reasons, but his
contentions lack evidentiary support. He points to statements allegedly made by
key decision makers, including Gale Rossides, Mike Restovich and Thom Quinn,
regarding the agency’s intention to replace older workers with younger workers.
He also points to statistical evidence showing that none of 58 rehired annuitants
who expressed an interest in continuing in their temporary positions on a
permanent basis was invited to do so, and that at most one of the seven rehired
annuitants who applied to fill their temporary positions on a permanent basis was
hired. Hill, however, has not presented evidence, as the summary judgment
standard requires, to show he was aware of the statements by Rossides or
Restovich or that he relied on those statements in deciding not to apply. He
likewise has failed to present evidence to show the hiring decisions affecting other
rehired annuitants predated his decision not to apply, to show he was aware of
those other hiring decisions or to show the other decisions caused him not to apply.
With respect to Quinn, Hill says he was aware of discriminatory statements made
by Quinn, but the only document he relies on to show Quinn made the statements
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and his awareness of them is his own interrogatory responses. Such responses are
not proper evidence. See Grace & Co. v. City of Los Angeles,
278 F.2d 771, 776
(9th Cir. 1960) (“Normally, a party may not introduce his self-serving answers to
an opponent’s interrogatories.”). In light of these evidentiary flaws, Hill’s
contentions fail.
AFFIRMED.
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