                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JAN 08 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JAMES J. WANG, an individual,                    No.   16-55664

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-08883-BRO-PJW
 v.

SONY PICTURES ENTERTAINMENT,                     MEMORANDUM*
INC., A Delaware Corporation; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                     Argued and Submitted December 6, 2017
                              Pasadena, California

Before: KELLY,** CALLAHAN, and BEA, Circuit Judges.


      Plaintiff-Appellant James Wang applied for a software engineering job at

Defendant-Appellee Sony Pictures Imageworks, Inc., and alleges that, in violation


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
of California’s Fair Employment and Housing Act (FEHA) and the Americans

with Disabilities Act (ADA), he was denied an interview because he is deaf. The

district court granted summary judgment for Defendants because Mr. Wang failed

to show that he was qualified for the position and, alternatively, failed to show that

Sony’s reason for not interviewing him was pretextual. The district court further

held that there was no basis for Mr. Wang’s punitive damages claim. Exercising

jurisdiction under 28 U.S.C. § 1291 and reviewing the grant of summary judgment

de novo, we affirm.

      Under both FEHA and the ADA, a plaintiff’s prima facie case includes

showing that he or she is qualified for the job. See Nigro v. Sears, Roebuck & Co.,

784 F.3d 495, 497 (9th Cir. 2015) (FEHA); Snead v. Metro. Prop. & Cas. Ins. Co.,

237 F.3d 1080, 1087 (9th Cir. 2001) (ADA). It was undisputed at summary

judgment that the Sony position required a minimum of three years’ practical work

experience with Java. And in his deposition, Mr. Wang testified to having little

work experience with Java and also testified that he would have needed on-the-job

training in it. He tried to mitigate the effect of this testimony with a declaration

that he had the requisite Java experience, but the district court excluded the

declaration on the grounds that it was uncorroborated, self-serving, and

contradictory to his deposition testimony. In his opening brief on appeal, Mr.


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Wang did not challenge the district court’s exclusion of his declaration and

therefore waived the argument that the exclusion was error. See Smith v. Marsh,

194 F.3d 1045, 1052 (9th Cir. 1999). Even if he had challenged it, “exclusion of

evidence at summary judgment is reviewed for abuse of discretion.” U.S. Cellular

Inv. Co. v. GTE Mobilnet, Inc., 281 F.3d 929, 934 (9th Cir. 2002). Given that

courts may exclude “testimony that flatly contradicts earlier testimony in an

attempt to ‘create’ an issue of fact and avoid summary judgment,” Kennedy v.

Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991), the exclusion was not an

abuse of discretion.

      Even with his declaration, no reasonable jury could have found that Mr.

Wang had the qualifications necessary to establish a prima facie case of disability

discrimination. Mr. Wang’s declaration stated that he had spent six years working

with programs that required skill in Java, but he stated in his deposition that he

used Java only “a little bit” (about three to five percent of his time) during those

six years. This does not create a genuine dispute as to whether he had the requisite

three years’ practical work experience in Java. Accordingly, the district court

correctly determined that Defendants were entitled to summary judgment.

      For the first time on appeal, Mr. Wang argues that Java was not a true job

qualification. This is directly contrary to his position at summary judgment, where


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he did not dispute that a minimum of three years’ experience in Java was a job

requirement. Issues raised for the first time on appeal are generally deemed

waived. Singh v. Napolitano, 649 F.3d 899, 903 (9th Cir. 2011). The closest Mr.

Wang came to making this argument was when he asked, “[I]f Java experience

were so crucial . . . then why would Sony schedule an interview with a candidate

like Simone Wu[,] who had none?” However, this question arose in the context of

arguing that Sony’s reason for not interviewing Mr. Wang was pretextual, not that

Java was a specious requirement. Furthermore, Sony’s offer to interview a

candidate who did not have Java experience on her resume does not mean that Java

was not a true requirement. Sony stated that it would interview Simone Wu “to

check her skills a little deeper,” not that it would hire her regardless of her Java

experience. Because this issue was not disputed nor argued before the district

court, we decline to consider it on appeal.

      The district court correctly granted summary judgment for Defendants on

the ground that Mr. Wang failed to establish a prima facie case of discrimination.

Consequently, we need not consider the district court’s alternative holdings

regarding whether Mr. Wang failed to show pretext or whether Mr. Wang can

recover punitive damages.

      AFFIRMED.


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