                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

ARTURO PACHECO,                                  No. 09-15931

              Plaintiff - Appellant,             D.C. No. 3:07-cv-04415-MEJ
  v.

ROBERT ESTRELLA, A.C. Transit -                  MEMORANDUM *
Division 3 - Richmond Facility,
Transportation Supt. 201 21st St.,
Richmond, CA 94801,

              Defendant - Appellee.

                  Appeal from the United States District Court
                      for the Northern District of California
                 Maria-Elena James, Magistrate Judge, Presiding **

                             Submitted May 25, 2010 ***

Before:       CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Arturo Pacheco appeals pro se from the district court’s order denying his

motion for summary judgment and its sua sponte summary judgment for the


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to proceed
before a magistrate judge.
      ***
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                                                                 09-15931
defendant on Pacheco’s claim that defendant discriminated against him on the

basis of his race and national origin by refusing to return him to his position as a

bus driver following his return from medical leave. We have jurisdiction under 28

U.S.C. § 1291. We review de novo summary judgment, Leever v. Carson City,

360 F.3d 1014, 1017 (9th Cir. 2004), and we affirm.

      The district court properly denied Pacheco’s motion for summary judgment

because Pacheco presented no evidence establishing a prima facie case of

discrimination, and defendant presented uncontroverted evidence that the motive

for his decision was nondiscriminatory. See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 148 (2000) (“[A]n employer would be entitled to judgment as a

matter of law if the record conclusively revealed some other, nondiscriminatory

reason for the employer’s decision, or if the plaintiff created only a weak issue of

fact as to whether the employer’s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had occurred.”).

      Contrary to Pacheco’s contention, the district court properly granted

summary judgment for defendant sua sponte because Pacheco “had a full and fair

opportunity to ventilate the issues involved in the matter.” Gospel Missions of Am.

v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003) (citation and internal

quotation marks omitted).


                                                                                09-15931
Pacheco’s remaining contentions are unpersuasive.

AFFIRMED.




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