                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 21 2010

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




                             FOR THE NINTH CIRCUIT



ANTHONY FARIER,                                   No. 09-16252

               Plaintiff - Appellant,             D.C. No. 2:07-cv-01407-DGC

  v.
                                                  MEMORANDUM *
CITY OF MESA, a municipal corporation,

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Anthony Farier appeals pro se from the district court’s summary judgment in

his action claiming racial discrimination and retaliation under Title VII of the Civil

Rights Act of 1964 and 42 U.S.C. § 1981. We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291. We review de novo, Yartzoff v. Thomas, 809 F.3d 1371, 1373 (9th Cir.

1987), and we affirm.

      The district court properly concluded that Farier failed to raise a triable issue

as to his Title VII claims. Farier’s claim of discrimination in 2003 was time-barred

because he did not file a timely claim with the Equal Employment Opportunity

Commission. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Farier’s claim of

discrimination as to promotion decisions before May 2006 failed to establish a

prima facie case because he did not identify the positions at issue or show that he

applied and was qualified for them. See Yartzoff, 809 F.2d at 1374 (“[F]ailure to

allege ‘specific facts’ sufficient to establish the existence of a prima facie case

renders a grant of summary judgment appropriate.”). Farier’s claim of

discrimination as to the denial of a promotion in July 2006 failed because he did

not show by a preponderance of evidence that defendant’s stated non-

discriminatory reason for not promoting him was a mere pretext. See Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

      The district court properly concluded that Farier failed to raise a triable issue

as to his Section 1981 claim because he did not identify a discriminatory custom or

policy that caused defendant to deny him promotions. See Bd. of County Comm’rs

of Bryan County v. Brown, 520 U.S. 397, 404 (1997) (Section 1981 plaintiff must


                                            2                                     09-16252
“demonstrate that, through its deliberate conduct, the municipality was the

‘moving force’ behind the injury alleged.”) (emphasis in original).

      The district court properly concluded that Farier failed to raise a triable issue

as to his Title VII and Section 1981 retaliation claims because he failed to establish

that defendant’s stated, legitimate reason for denying him worker’s compensation

was a pretext to retaliate against him for complaining about discrimination. See

Surrell v. Cal. Water Serv., 518 F.3d , 1108 (9th Cir. 2008) (after establishing

prima facie case of retaliation, plaintiff must show that employer’s proffered non-

discriminatory reason for its adverse employment action was a pretext).

      Finally, the district court did not abuse its discretion in denying Farier’s

motion to compel because it was untimely by more than six months and Farier

failed to establish good cause to excuse his delay. See Laub v. U.S. Dep’t of

Interior, 342 F.3d 1080, 1084, 1093 (9th Cir. 2003) (reviewing for abuse of

discretion the denial of a discovery request and allowing reversal only with “the

clearest showing that the denial of discovery results in actual and substantial

prejudice to the complaining litigant”).

      Farier’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           3                                      09-16252
