                                NOT FOR PUBLICATION                       FILED
                         UNITED STATES COURT OF APPEALS                    JUN 1 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                                 FOR THE NINTH CIRCUIT


 MICHAEL JAMES McDERMOTT,                           No.    14-35022

             Plaintiff - Appellant,                 D.C. No. 2:12-cv-02042-MJP

   v.
                                                    MEMORANDUM**
 PENNY PRITZKER,* Secretary of
 Commerce; et al.,

             Defendants - Appellees.

                        Appeal from the United States District Court
                          for the Western District of Washington
                        Marsha J. Pechman, Chief Judge, Presiding

                                  Submitted May 24, 2016***

Before:          REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

        Michael James McDermott appeals pro se from the district court’s summary

judgment in his employment discrimination action. We have jurisdiction under 28

        *
             Penny Pritzker has been substituted for her predecessor, Rebecca
Blanks, as Secretary of Commerce under Fed. R. App. P. 43(c)(2).
        **
             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. Accordingly, McDermott’s request for oral argument, set
forth in his opening brief, is denied. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo. Szajer v. City of Los Angeles, 632 F.3d 607,

610 (9th Cir. 2011). We affirm.

      The district court properly dismissed McDermott’s Bivens claim because

“the [Civil Service Reform Act] preempts Bivens actions and other suits for

constitutional violations arising from governmental personnel actions.” Russell v.

U.S. Dep’t of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999).

      The district court properly dismissed McDermott’s retaliation claim under

the Occupational Safety and Health Act (“OSHA”) because McDermott never

alleged that any adverse action was taken against him on the basis of a safety

complaint. See 29 C.F.R. § 1977.12 (noting that OSHA “protects employees from

discrimination occurring because of the exercise of any right afforded by this

Act.”).

      The district court properly dismissed McDermott’s Title VII claims against

defendants other than the Secretary of Commerce because the only appropriate

defendant in a Title VII action brought by a federal employee is the head of the

department or agency in his or her official capacity. See Romain v. Shear, 799

F.2d 1416, 1418 (9th Cir. 1986) (interpreting 42 U.S.C. § 2000e-16).

      The district court properly granted summary judgment on McDermott’s Title

                                         2                                    14-35022
VII disparate treatment claim because McDermott failed to raise a genuine dispute

of material fact as to whether a similarly situated individual outside of his

protected class was treated more favorably. See Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1156 (9th Cir. 2010) (setting forth elements).

      The district court properly granted summary judgment on McDermott’s Title

VII retaliation claim because defendants articulated legitimate, nondiscriminatory

reasons for termination, and McDermott failed to raise a genuine dispute of

material fact as to whether these reasons were pretextual. See Cornwell v. Electra

Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (setting forth elements

and analysis).

      The district court properly granted summary judgment on McDermott’s Title

VII hostile work environment claim because McDermott failed to raise a genuine

dispute of material fact as to whether he was subjected to harassment on account of

his sex, or that any harassment was sufficiently severe and pervasive to create an

objectively hostile work environment. See Dawson v. Entek Int’l, 630 F.3d 928,

937-38 (9th Cir. 2011) (setting forth elements).

      The district court did not abuse its discretion by declining to exercise

jurisdiction over McDermott’s declaratory judgment claim. See Principal Life Ins.

                                          3                                      14-35022
Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005) (setting forth factors guiding

district court’s exercise of discretion).

      AFFIRMED.




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