                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 22 2015

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



                            FOR THE NINTH CIRCUIT


CALVIN PHILLIPS,                                 No. 13-16923

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00384-LEK-
                                                 RLP
 v.

RAY MABUS, sued in his official                  MEMORANDUM*
capacity as the Secretary of the Navy,
Department of the Navy,

              Defendant - Appellee.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                              Submitted June 8, 2015**
                                 Honolulu, Hawaii

Before: WARDLAW, BERZON, and OWENS, Circuit Judges.

      Calvin Phillips appeals the district court’s grant of summary judgment in

favor of Ray Mabus, sued in his official capacity as Secretary of the Navy and


        *
             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).
referred to herein as “the Navy,” on Phillips’s claims for race, sex, age, and

disability discrimination, and unlawful retaliation, brought under Title VII, 42

U.S.C. §§ 2000e-2, 2000e-3, the Age Discrimination in Employment Act, 29

U.S.C. § 623, and the Rehabilitation Act, 29 U.S.C. § 791. We have jurisdiction

under 28 U.S.C. § 1291, we review the grant of summary judgment de novo,

Coons v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d 879, 884 (9th Cir.

2004), and we affirm.

      1. Phillips has failed to make out a prima facie case for unlawful retaliation.

See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). Although the

Navy chose to hire Felicia Williams instead of Phillips “on the heels” of his

January 21, 2011 email complaining of mistreatment in his interview, Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002), the email was not a

protected activity. Phillips admitted in the district court that he had no reasonable

basis to believe that he had been subjected to age, race, sex, or disability

discrimination when he drafted the January 21 email, so he could not have

reasonably perceived that the email complained of conduct made illegal under Title

VII. See Brooks, 229 F.3d at 928.

      Phillips further argues that the Navy’s February 3, 2011 decision to reduce

the number of available positions was unlawful retaliation for his January 25, 2011


                                           2                                     13-16923
official communication to an EEO officer. The district court held that this alleged

retaliation was beyond the scope of the case because Phillips had failed to raise it

in his complaint. As Phillips did not contest that ruling in his opening brief, he has

waived any challenge to it. See Brookfield Commc’ns, Inc. v. W. Coast Entm’t

Corp., 174 F.3d 1036, 1046 n.7 (9th Cir. 1999).

      2. As to allegations of unlawful race, sex, age, or disability discrimination,

Phillips has failed to raise a genuine dispute of material fact as to whether the

Navy’s purported nondiscriminatory basis for failing to hire him was a mere

pretext for discrimination. See Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225

F.3d 1115, 1127 (9th Cir. 2000).

      The Navy’s judgment that Phillips was overqualified for the position was

not a euphemism to mask age discrimination, because the overqualified label had

“objective content.” EEOC v. Ins. Co. of N. Am., 49 F.3d 1418, 1420-21 (9th Cir.

1995). Phillips’s resolute belief that he was already an expert suggested to the

interviewers that he would not be receptive to the training they believed he needed,

and his superior management experience suggested that he was not a fit for the

lower-level, data-entry position with few opportunities for promotion.

      None of Phillips’s remaining evidence raises an inference that the Navy’s

reasoning was pretextual. First, the evidence that Phillips had greater experience


                                           3                                    13-16923
than Williams is consistent with the Navy’s decision to hire someone with lesser,

more applicable experience and a greater willingness to learn. Second, Phillips

presents no evidence from which a reasonable trier of fact could conclude that the

Navy’s decision to interview Williams, a compensable veteran, rather than

candidates with higher experience scores who were not compensable veterans,

contravened established policy or was otherwise discriminatory. Third, evidence

that Navy employees belittled or criticized Phillips and tried to discourage his

interest in the position is not evidence of discrimination, because there is no

connection between the alleged acrimony and a protected ground. See Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (explaining that Title VII

is not “a general civility code”). And finally, evidence that the department that

rejected Phillips regularly hires candidates who are not white men is of little to no

probative value given the small sample size and the lack of information about the

applicant pool from which they were chosen. See Coleman v. Quaker Oats Co.,

232 F.3d 1271, 1283 (9th Cir. 2000); see also Obrey v. Johnson, 400 F.3d 691, 697

(9th Cir. 2005).

      Because Phillips raises no genuine dispute of material fact, summary

judgment was properly granted.

      AFFIRMED.


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