                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2012

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




                             FOR THE NINTH CIRCUIT



KUANG-BAO P. OU-YOUNG,                           No. 11-16653

               Plaintiff - Appellant,            D.C. No. 5:10-cv-00464-RS

  v.
                                                 MEMORANDUM *
JOHN E. POTTER, in his official capacity
as Postmaster General, United States
Postal Service,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Kuang-Bao P. Ou-Young appeals pro se from the district court’s judgment

in his Title VII action alleging claims for employment discrimination, retaliation,




          *
             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).
and hostile work environment based on his race. We have jurisdiction under 28

U.S.C. § 1291. We review de novo summary judgment, Vazquez v. County of Los

Angeles, 349 F.3d 634, 639 (9th Cir. 2004), and for an abuse of discretion the

dismissal of an action for failure to prosecute, Al-Torki v. Kaempen, 78 F.3d 1381,

1384 (9th Cir. 1996). We affirm.

      The district court properly granted summary judgment on Ou-Young’s

employment discrimination and retaliation claims because Ou-Young failed to

raise a genuine dispute of material fact as to whether he was treated less favorably

than a similarly situated employee or whether defendant’s proffered reason for

taking adverse employment action against him was pretextual. See Vazquez, 349

F.3d at 640-42, 644-47 (setting forth elements of prima facie employment

discrimination and retaliation claims under Title VII).

      The district court did not abuse its discretion in alternatively dismissing the

action for failure to prosecute because Ou-Young repeatedly refused to respond to

written discovery, attend his deposition, submit a substantive opposition to

summary judgment, or otherwise participate in the litigation despite being warned

about the consequences of his actions. See Al-Torki, 78 F.3d at 1384-85 (listing

factors for dismissal, including willful, inexcusable failure to prosecute).

       Ou-Young waived his right to appeal the earlier dismissal of his hostile


                                           2                                    11-16653
work environment and other non-Title VII claims because Ou-Young’s intentional

failure to prosecute the action rendered that decision non-appealable. See id. at

1386 (willful failure to prosecute forfeits a litigant’s right to appeal interlocutory

orders before final judgment that would otherwise be appealable).

      We do not consider issues Ou-Young raises for the first time on appeal. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      Ou-Young’s remaining contentions are unpersuasive.

      AFFIRMED.




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