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[U} Darnell J. Nelson v. Timothy F. Geithner

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


January 7, 2011

DARNELL J. NELSON, PLAINTIFF - APPELLANT,
v.
TIMOTHY F. GEITHNER, SECRETARY OF THE TREASURY DEPARTMENT,*FN1 DEFENDANT - APPELLEE.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding D.C. No. 2:08-cv-01034-JCC

NOT FOR PUBLICATION

MEMORANDUM*fn2

Submitted December 14, 2010*fn3

Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.

Darnell J. Nelson, an attorney formerly employed by the Internal Revenue Service ("IRS"), appeals pro se from the district court's summary judgment in his employment action alleging race, sex, age, and disability discrimination, hostile work environment, retaliation, and failure to accommodate. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2003), and we affirm.

The district court properly granted summary judgment on the discrimination and retaliation claims because Nelson failed to raise a triable issue that the IRS's proffered nondiscriminatory reasons for its adverse employment actions, such as his poor performance evaluation, failure to receive a raise, placement on a performance improvement plan, and termination, were pretextual. See id. at 640-42, 646.

The district court properly granted summary judgment on the hostile work environment claim because Nelson failed to raise a triable issue that he was subjected to any conduct because of his membership in a protected class. See id. at 642.

The district court properly granted summary judgment on Nelson's accommodation claim because he failed to raise a triable issue as to whether he was entitled to an accommodation for his alleged disability or whether the IRS failed to accommodate his alleged disability. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (an employer is not required to provide the accommodation that the employee requests or prefers, but need only provide a reasonable accommodation).

We do not consider Nelson's contentions raised for the first time in his reply brief. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).

Nelson's remaining contentions are unpersuasive.

AFFIRMED.


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