                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 28 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JEROME MACK, an individual,                     No.   18-15452

                Plaintiff-Appellant,            D.C. No. 1:15-CV-01600-JLT

 v.
                                                MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                 Jennifer L. Thurston, Magistrate Judge, Presiding

                           Submitted October 23, 2019**
                             San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.

      Jerome Mack appeals the dismissal and adverse summary judgment in favor

of the California Department of Corrections and Rehabilitation (“CDCR”) and its

officials on Mack’s claims of racial discrimination, harassment, and retaliation in


      *
             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).
violation of the California Fair Employment and Housing Act, Cal. Gov.

Code §§ 12940–12952 (“FEHA”), Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e–2000e-17 (“Title VII”), and 42 U.S.C. §§ 1981 and 1983. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Mack’s FEHA claims were properly dismissed based on state sovereign

immunity. Absent “unequivocal consent,” federal courts may not consider suits

against states or their agencies, Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir. 1986), a

protection that also extends to agency officials, see Doe v. Regents of the Univ. of

Cal., 891 F.3d 1147, 1153 (9th Cir. 2018). “California has not waived its immunity

to FEHA actions in federal court.” Freeman v. Oakland Unified Sch. Dist., 179 F.3d

846, 847 (9th Cir. 1999). Thus, the district court lacked jurisdiction to adjudicate

Mack’s FEHA claims against CDCR and its officials.1

      We do not address Mack’s argument that the district court erred by barring

him from challenging the California State Personnel Board’s (“SPB”) decisions

sustaining his discipline for sleeping on the job, refusing to work with a female

subordinate, and leaving his post without permission. The SPB’s decisions had “no

preclusive impact” on Mack’s Title VII claims, whose evidentiary deficiencies at


1
  The district court dismissed Mack’s FEHA claims “without leave to amend.” In
an abundance of caution, we clarify that such dismissal should be deemed to have
been without prejudice. See Freeman, 179 F.3d at 847 (“Dismissals for lack of
jurisdiction should be without prejudice so that a plaintiff may reassert his claims in
a competent court.” (quotation and modification omitted)).

                                          2
summary judgment concurrently disposed of those claims to which the court’s initial

preclusion ruling had applied. Because preclusion played no role in any claim’s final

disposition, we need not reach that issue here.

      There was no abuse of discretion in striking portions of Mack’s declaration

filed in opposition to CDCR’s motion for summary judgment. A party cannot create

a factual dispute and avoid summary judgment by filing an affidavit contradicting

his own prior testimony. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012).

Mack initially testified that he could not recall any racial harassment within the

relevant period and claimed little knowledge of an inmate housing incident for which

he was later investigated. Mack’s declaration offered new, sometimes contradictory

information yet omitted any explanation for his new recollection. See id. at 1081

(requiring “reasonable explanation” for “newly-remembered facts”). His list of

employees that allegedly received more favorable treatment similarly excluded any

basis for his knowledge. See Bliesner v. Commc’n Workers of Am., 464 F.3d 910,

915 (9th Cir. 2006) (“[A]ffidavits must be based on personal knowledge.”). Striking

these statements was not clearly erroneous.

      Nor did the district court abuse its discretion by refusing to strike Pat

Vazquez’s declaration filed in support of CDCR’s motion. A party must supplement

its initial disclosures “if the party learns that in some material respect the disclosure

or response is incomplete or incorrect, and if the additional or corrective information


                                           3
has not otherwise been made known to the other parties during the discovery process

or in writing.” Fed. R. Civ. P. 26(e)(1)(A). Though it did not specifically disclose

Vazquez as a witness, CDCR produced documents revealing her as one with

knowledge pertinent to Mack’s claims. There was no obvious error, then, in refusing

to strike her declaration.

      The district court correctly rejected David Crounse, a Caucasian colleague, as

a similarly situated employee supporting Mack’s discrimination claims. Similarly

situated employees generally have similar jobs and display similar conduct. Josephs

v. Pac. Bell, 443 F.3d 1050, 1065 (9th Cir. 2006). Mack and Crounse shared neither.

Whereas Mack was denied an acting position due to a pending investigation,

Crounse was already in an acting position at the onset of his disciplinary

investigation.    And the record omits the conduct that spawned Crounse’s

investigation. It follows that they are not similarly situated.

      The record is similarly short on evidence of pretext supporting Mack’s

retaliation claims.   Mack’s statistical evidence lacks the necessary depth and

accounting for nondiscriminatory variables to “show a stark pattern of

discrimination unexplainable on grounds other than race.” See Aragon v. Republic

Silver State Disposal Inc., 292 F.3d 654, 663 (9th Cir. 2002) (quotations and

modification omitted).       His conclusory allegations of deficiencies in CDCR’s

antidiscrimination practices stop short of “specific, substantial evidence of pretext.”


                                           4
See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000) (quotation

omitted). And an absence of “fundamentally different justifications” for CDCR’s

actions prevents Mack from establishing employer dissembling. See Washington v.

Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993).

      Finally, we decline to resolve whether Mack’s complaints present a matter of

public concern covered by the First Amendment. Regardless, Mack’s retaliation

claim fails for the same lack of causation—namely, pretext—that foreclosed his

other retaliation claims. See Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 822

(9th Cir. 2017) (requiring plaintiff to show protected speech was a “substantial or

motivating factor” for adverse employment action); see also Allen v. Iranon, 283

F.3d 1070, 1075 (9th Cir. 2002) (“Courts determining whether a plaintiff has met

his burden . . . often look to evidence that the employer’s proffered reasons for the

challenged decision were pretextual.”). Because this alternative ground suffices to

affirm summary judgment, we need not reach the constitutional question. See

Bliesner, 464 F.3d at 913 (“We may affirm on any ground supported by the record.”).

      AFFIRMED.




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