                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MELVIN KAHEANA CHANG, M.D.,                      No. 14-15230

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00617-DKW-
                                                 RLP
 v.
                                                 MEMORANDUM*
STRAUB CLINIC AND HOSPITAL,
INC.; JOHN DOES, 1 to 5; DOE
PARTNERSHIPS, 1 to 5; DOE
CORPORATIONS, 1 to 5; DOE
GOVERNMENTAL ENTITIES, 1 to 5,

              Defendants - Appellees.


                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                     Argued and Submitted October 20, 2016
                               Honolulu, Hawaii

Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.

      Appellant Melvin Chang, M.D., appeals from the district court’s judgment

granting Appellee Straub Clinic and Hospital, Inc.’s (Straub) motion for summary

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment and denying Chang’s subsequent motion for reconsideration. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      We review de novo a district court’s summary judgment. Whitman v.

Mineta, 541 F.3d 929, 931 (9th Cir. 2008). A district court’s denial of a motion for

reconsideration is reviewed for abuse of discretion. Sch. Dist. No. 1J, Multnomah

Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).

      In his retaliation claim, Chang did not carry his burden under the first prong

of the McDonnell-Douglas test to make a prima facie showing of causation. See

Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994). It is possible to raise

an inference of causation by showing that the decision-maker knew of the

employee’s protected activity. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 (9th

Cir. 1982). Here, however, there is no evidence that Randy Yates, the person who

fired Chang, knew that his advocacy was based on a belief that Straub was

discriminating. There is therefore no basis for concluding that Yates knew Chang

engaged in protected activity. Nor is there evidence that any Straub employee who

knew of Chang’s activity participated in the decision to terminate him. See id. at

797 n.5.

      Chang cannot rely on temporal proximity to raise an inference of causation

because the three-plus year gap between his activity and his termination is too


                                           2
great. See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th

Cir. 2006) (eight-month gap was “too great to support an inference” of causation).

Chang argues that his email to Ray Vara and his telephone call with Linda Cazinha

in the months before his termination were protected activity, but there was no

mention of discrimination in either communication. Finally, Chang’s “unpleasant

dealings” with Straub’s CEO do not amount to a “pattern of antagonism.” See

Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 895 (9th Cir. 2004). Accordingly, the

district court did not err in granting summary judgment on this claim.

      Regarding Chang’s intentional infliction of emotional distress claim, his

response to the summary judgment motion did not address Straub’s argument that

his claim is barred by Hawaii’s workers’ compensation statute. He has therefore

waived this issue. Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000).

Although we have discretion to consider Chang’s argument, there are no

“exceptional circumstances” that move us to do so. Baccei v. United States, 632

F.3d 1140, 1149 (9th Cir. 2011).

      Chang also has not shown that the district court abused its discretion in

denying his motion for reconsideration. He has not identified any “newly

discovered evidence” or “intervening change in controlling law,” nor has he

demonstrated that the district court’s order was clearly erroneous or “manifestly


                                          3
unjust.” Sch. Dist. No. 1J, 5 F.3d at 1263. We therefore affirm the district court’s

summary judgment and denial of reconsideration.

      AFFIRMED.




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