                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FERNANDO YATES,                                 No.    17-16776

                Plaintiff-Appellant,            D.C. No. 3:16-cv-01077-MEJ

 v.
                                                MEMORANDUM*
WEST CONTRA COSTA UNIFIED
SCHOOL DISTRICT,

                Defendant-Appellee.

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

                         Submitted December 18, 2017***

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

      Fernando Yates appeals pro se from the district court’s summary judgment

in his employment action alleging disability discrimination and retaliation in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of the Americans with Disabilities Act (“ADA”). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Kaplan v. City of N. Las Vegas, 323

F. 3d 1226, 1229 (9th Cir. 2003). We affirm.

      The district court properly granted summary judgment on Yates’ disability

discrimination claim because Yates failed to raise a genuine dispute of material

fact as to whether his hearing loss constituted a disability. See id. at 1231

(discussing definition of “disability” under the ADA, including being “regarded

as” having a disability); see also Walton v. U.S. Marshals Serv., 492 F.3d 998,

1006 (9th Cir. 2007) (explaining that in order to show that plaintiff is “regarded as”

having a disability, the plaintiff “must show that [his] employer regards [him] as

substantially limited in a major life activity and not just unable to meet a particular

job performance standard”).

      The district court properly granted summary judgment on Yates’ retaliation

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

his employer’s legitimate, non-retaliatory reasons for its actions were pretextual.

See Brown v. City of Tucson, 336 F.3d 1181, 1187-88 (9th Cir. 2003) (explaining

application of burden-shifting analysis to ADA retaliation claims and requirements

for establishing pretext).

                                           2                                    17-16776
      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      We reject as without merit Yates’ contention regarding the district court’s

alleged bias.

      AFFIRMED.




                                          3                                       17-16776
