                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 18 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


CHARLES EDWARD ALLEN, pro se,                    No. 12-35901

               Plaintiff - Appellant,            D.C. No. 3:10-cv-05721-RBL

  v.
                                                 MEMORANDUM*
UNITED STATES POSTAL SERVICE,

               Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                            Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Charles Edward Allen appeals pro se from the district court’s judgment

dismissing his employment action alleging, among other claims, a violation of the

Family Medical Leave Act (“FMLA”). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Mangano v. United States, 529 F.3d 1243, 1245 n.2

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(9th Cir. 2008) (dismissal for lack of subject matter jurisdiction); Saul v. United

States, 928 F.2d 829, 832 (9th Cir. 1991) (summary judgment). We may affirm on

any ground supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534

F.3d 1116, 1121 (9th Cir. 2008), and we affirm.

      The district court properly granted summary judgment on Allen’s FMLA

claim because Allen failed to raise a genuine dispute of material fact as to whether

the United States Postal Service interfered with the exercise of his rights under the

FMLA or retaliated against him for exercising his rights under the FMLA. See

Bailey v. Sw. Gas Co., 275 F.3d 1181, 1185-86 (9th Cir. 2002) (employer bears the

“right and responsibility” of inquiring after medical certification to determine if

leave is covered by FMLA, and employee’s “refusal to provide additional

information [is] not a protected activity”); Bachelder v. Am. W. Airlines, Inc., 259

F.3d 1112, 1125 (9th Cir. 2001) (“[I]t should be obvious that the FMLA is not

implicated and does not protect an employee against disciplinary action based upon

[] absences if those absences are not taken for one of the reasons enumerated in the

Act.” (citation and internal quotation marks omitted)).

      Dismissal of Allen’s wrongful termination claim was proper because the

district court lacked subject matter jurisdiction. See 39 U.S.C. § 1005(a) (Chapter

75 of the Civil Service Reform Act (“CSRA”) generally applies to officers and


                                           2                                    12-35901
employees of the Postal Service); Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2134

(2012) (if the challenged conduct constitutes a “major adverse action” under

Chapter 75 of the CSRA, then the CSRA’s administrative procedures are plaintiff’s

exclusive remedy, preempting all other review).

      Dismissal of the claim that Allen labels as a “hostile work environment”

claim was proper to the extent that it relates to his termination because the district

court lacked subject matter jurisdiction due to preemption by the CSRA. See

Elgin, 132 S. Ct. at 2134. To the extent that the claim concerns events unrelated to

his termination, dismissal was proper because Allen failed to exhaust his

administrative remedies. See Goodman v. United States, 298 F.3d 1048, 1054-55

(9th Cir. 2002) (a district court must dismiss, for lack of subject matter jurisdiction,

a claim for damages under the Federal Tort Claims Act that is not sufficiently

administratively exhausted).

      We do not consider evidence submitted for the first time on appeal. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

      We reject Allen’s contentions concerning “incomplete and erroneous

information and perjury testimony.”

      AFFIRMED.


                                            3                                    12-35901
