                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CLINTON C. ST. CLASSIS BROWN II,                No. 17-15441

                Plaintiff-Appellant,            D.C. No. 1:14-cv-00559-LEK-KJM

 v.
                                                MEMORANDUM*
DCK WORLDWIDE, LLC; et al.,

                Defendants-Appellees.

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

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      Clinton C. St. Classis Brown II appeals pro se from the district court’s

summary judgment in his employment action alleging federal and state law claims.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.


      *
             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).
      The district court properly granted summary judgment on Brown’s race and

color discrimination claims because Brown failed to raise a genuine dispute of

material fact as to whether he was performing according to his employer’s

legitimate expectations, or whether he was treated less favorably than similarly

situated employees not of his protected class. See Bergene v. Salt River Project

Agric. Improvement & Power Dist., 272 F.3d 1136, 1140 (9th Cir. 2001) (setting

forth prima facie case of discrimination under Title VII); Schefke v. Reliable

Collection Agency, Ltd., 32 P.3d 52, 69-70 (Haw. 2001) (acknowledging the

Supreme Court of Hawaii’s adoption of the burden-shifting analysis from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for Hawaii race

discrimination claims); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103,

1138 (9th Cir. 2004) ([S]tatements by nondecisionmakers . . . cannot alone suffice

to satisfy the plaintiff’s burden[.]” (brackets, citation, and internal quotation marks

omitted)).

      The district court properly granted summary judgment on Brown’s Title VII

harassment claim because Brown failed to raise a triable dispute as to whether

defendants were aware of the alleged harassing conduct prior to Brown’s

termination. See Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (“[A]n

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employer cannot be held liable for misconduct of which it is unaware.”).

      The district court properly granted summary judgment on Brown’s

retaliation claims because Brown failed to raise a triable dispute as to whether he

engaged in protected activity prior to his termination. See Bergene, 272 F.3d at

1140-41 (setting forth prima facie case of retaliation under Title VII); Lales v.

Wholesale Motors Co., 328 P.3d 341, 365-66 (Haw. 2014) (setting forth prima

facie case of retaliation under Hawaii law).

      The district court properly granted summary judgment on Brown’s

whistleblowing claim because Brown failed to raise a triable dispute as to whether

he was engaged in conduct protected by Hawaii’s whistleblowing statute during

the relevant period. See Haw. Rev. Stat. § 378-62 (setting forth protected

whistleblowing activities under Hawaii law).

      The district court did not abuse its discretion by granting defendants’

motions concerning contacting witnesses and for a protective order because Brown

failed to show he was prejudiced by these orders. See Laub v. U.S. Dep’t of

Interior, 342 F.3d 1080, 1084, 1093 (9th Cir. 2003) (setting forth standard of

review and explaining that “a decision to deny discovery will not be disturbed

except upon the clearest showing that the denial of discovery results in actual and

                                          3                                     17-15441
substantial prejudice to the complaining litigant.” (citation and internal quotation

marks omitted)).

      Contrary to Brown’s contentions, the district court did not conclude that it

was acceptable for others to use racial slurs to address him.

      We reject as meritless Brown’s contention that he was denied due process by

virtue of poverty.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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