                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 24 2012

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




                            FOR THE NINTH CIRCUIT



CURTIS PHELPS,                                   No. 10-16161

              Petitioner-Appellant,              D.C. No. 3:07-cv-1055-JSW

  v.

UNITED STATES GENERAL                            MEMORANDUM *
SERVICES AGENCY,

              Defendant-Appellee.



                    Appeal from the United States District Court
                       for the District of Northern California
                     Jeffrey S. White, District Judge, Presiding

                    Argued and Submitted September 14, 2011
                            San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, Cleveland, sitting by designation.
      Curtis Phelps appeals the order of the district court granting summary judgment

in favor of his employer, the United States General Services Administration (“GSA”),

in Phelps’s action alleging race and national origin discrimination under Title VII of

the Civil Rights Act of 1964, retaliation in violation of 42 U.S.C. § 2000e-3(a), and

age discrimination in violation of the Age Discrimination in Employment Act. We

affirm.

                                          I.

      The district court did not err in ruling that Phelps failed to establish a prima

facie case of race discrimination. Phelps presented no direct evidence of race

discrimination, Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), and failed

to meet his burden of making out a prima facie case using indirect evidence. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie

case of race discrimination, a plaintiff must show

             (1) that the plaintiff belongs to a class of persons protected by
             Title VII; (2) that the plaintiff performed his or her job
             satisfactorily; (3) that the plaintiff suffered an adverse
             employment action; and (4) that the plaintiff’s employer treated
             the plaintiff differently than a similarly situated employee who
             does not belong to the same protected class as the plaintiff.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). A

number of the acts which he raises on appeal–excess scrutiny of his training request,



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a letter of counseling, and a memorandum putting him on notice of deficiencies in his

work performance–clearly do not qualify as adverse employment actions. While other

acts–a low performance evaluation, two charges of being absent without leave, and

the denial of a within-grade increase–may amount to adverse employment actions,

Phelps did not put forth evidence that other employees outside his protected class

were treated more favorably, a required element for stating a prima facie case of race

discrimination. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).

Even if Phelps had made out a prima facie case of racial discrimination as to these

acts, GSA offered legitimate non-discriminatory reasons for its actions, and Phelps

failed to prove these reasons were a pretext for discrimination.         See McDonnell

Douglas, 411 U.S. at 802-04.

                                           II.

      The district court did not err in ruling that Phelps failed to make out a prima

facie case for retaliation. The following three elements must be met in order to make

out a prima facie case of retaliation: (1) “[Phelps] engaged in a protected activity;” (2)

GSA “subjected [him] to an adverse employment action;” and (3) “a causal link exists

between the protected activity and the adverse action.” Manatt v. Bank of America,

NA, 339 F.3d 792, 800 (9th Cir. 2003) (internal citation and quotation marks omitted).

He has produced no evidence of a causal link between his protected activities and any


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adverse actions by his employer. His use of the underlying complaints that form the

basis of this action do not support a claim of retaliation. The other two matters to

which he refers, prior EEO complaints and sexual advances by his supervisor, also do

not support a claim for retaliation. Phelps has failed to produce evidence which

supports a finding that there was a causal link between these activities and GSA’s

actions.

                                         III.

      Phelps does not make any arguments before this court regarding the hostile

work environment, age, or national origin discrimination claims he raised in his

opening brief.   We have stated that we “review only issues [that] are argued

specifically and distinctly in a party’s opening brief.” Christian Legal Soc. Chapter

of Univ. of California v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (internal citation and

quotation marks omitted).     Therefore, the above-mentioned claims are deemed

abandoned.

      AFFIRMED.




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