                                                                             FILED
                            NOT FOR PUBLICATION                              JUN 22 2012

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




                            FOR THE NINTH CIRCUIT



CARL KNIGHT,                                     No. 11-35592

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00753-JLR

  v.
                                                 MEMORANDUM *
KATHY BROWN; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                        Argued and Submitted June 7, 2012
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**

       Carl Knight appeals the district court’s order granting summary judgment in

favor of the Defendants on his claims of disparate treatment, hostile work




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Leslie E. Kobayashi, District Judge for the District of
Hawaii, sitting by designation.
environment, retaliation, and unlawful employment practices in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), 42 U.S.C. §§ 1981

and 1983, and the Washington Law Against Discrimination. We have jurisdiction

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

      First, Knight failed to establish a prima facie case of disparate treatment

because he could not show that a similarly situated non-African American sergeant

was treated more favorably. Gene Willard and Knight were not similarly situated

“in all material respects.” See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).

Willard was the most senior security sergeant, and his seniority allowed him first

pick of assignments and shifts. Because Knight could not make out a prima facie

case of disparate treatment, the district court properly entered summary judgment.

See id. at 756–57.

      Second, Knight asserts that Defendants created a hostile work environment.

He points to one racially offensive comment made by Willard when Knight was

promoted to sergeant over Caucasian security officers. The comment was an

isolated incident, made outside of Knight’s presence. Under our case law, the

evidence provided by Knight is neither severe nor pervasive enough to alter the

conditions of his employment and create an abusive work environment. See

Manatt v. Bank of Am., NA, 339 F.3d 792, 799 (9th Cir. 2003).


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      Third, Knight argues that the district court erred in granting summary

judgment on his retaliation claims. We disagree. Defendants proffered a

legitimate, nondiscriminatory reason for Knight’s demotion and suspension: he

violated King County’s Code of Ethics and the Facilities Management Division’s

Security Policy and Procedures when he requested non-public criminal information

for a private bond company, asked for a fingerprint comparison for that same

private company, and sought to have a fugitive’s warrant changed. Because

Defendants had a nondiscriminatory reason for the adverse employment actions,

Knight bore the burden to prove that the reason was pretextual through specific and

substantial evidence. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270

(9th Cir. 1996). He failed to carry his burden; his reliance on temporal proximity

and unsubstantiated, subjective statements cannot prevent summary judgment. See

Brown v. City of Tucson, 336 F.3d 1181, 1187–88 (9th Cir. 2003).

      Lastly, we affirm the district court’s grant of summary judgment with

respect to Knight’s § 1983 claims against the County. Knight failed to prove

that Kathy Brown, the director of the Facilities Management Division, was a final

policymaking official, that the County maintained an unconstitutional policy or

custom, or that there was any other basis to impose municipal liability on the




                                          3
County. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690–94 (1978);

Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992).

      AFFIRMED.




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