                                                                           FILED
                            NOT FOR PUBLICATION                             APR 21 2011

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




                            FOR THE NINTH CIRCUIT



LEONARD L. PERALTA,                              No. 10-15654

              Plaintiff - Appellant,             D.C. No. 3:08-cv-05435-SI

  v.
                                                 MEMORANDUM *
CITY AND COUNTY OF SAN
FRANCISCO; MUNICIPAL
TRANSPORTATION AGENCY,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                             Submitted April 14, 2011 **
                              San Francisco, California

Before: GOODWIN and N.R. SMITH, Circuit Judges, and BLOCK, District
Judge.***


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
1.     Peralta has failed to make out a prima facie case of discrimination under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981

(“§ 1981”), and the Fair Employment and Housing Act (“FEHA”), because he has

“presented no facts to indicate that others outside of his protected class were

treated more favorably.” Foss v. Thompson, 242 F.3d 1131, 1134 (9th Cir. 2001).

2.     Peralta has failed to make out a prima facie case of retaliation under the

same statutes because his complaint to Senior Operating Manager George Louie

about Britt’s “unprofessional” conduct was not a protected activity—it did not

protest an unlawful employment practice. See 42 U.S.C. § 2000e-2(a) (defining

“unlawful employment practice” as discriminating against an employee or taking

action adversely affecting an employee’s status “because of such individual’s race,

color, religion, sex, or national origin.”).

3.     Peralta’s harassment claim under the FEHA fails because he has not

provided evidence that the complained-about conduct by his supervisor was “on

the basis of [his] race or national origin.” Aguilar v. Avis Rent A Car Sys., Inc., 21

Cal.4th 121, 129 (1999).

4.     Peralta’s discrimination claim under article I, section 8 of California’s

constitution fails because he was not “terminated, constructively discharged, or




                                               2
threatened with termination.” Strother v. S. Cal. Permanente Med. Grp., 79 F.3d

859, 872 (9th Cir. 1996).

5.    The district court did not abuse its discretion in rejecting Peralta’s objections

to four of the documents attached to appellees’ lawyer’s affidavit in support of

their motion for summary judgment because there is “evidence sufficient to

support a finding that the matter in question is what its proponent claims.” Orr v.

Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Evid. 901(a)).

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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