                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2010

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




                            FOR THE NINTH CIRCUIT

BERNARD LINDBLOM,                                No. 08-15782

             Plaintiff - Appellant,              D.C. No. 2:06-CV-02280-GEB-
                                                 GGH
  v.

UNITED STATES OF AMERICA, ex rel                 MEMORANDUM *
Department of the Army; et al.,

             Defendants - Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                     Argued and Submitted February 10, 2010
                            San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.

       Bernard Lindblom appeals from the district court’s grant of summary

judgment in favor of the Secretary of the Army and other defendants (collectively

the “Army”) on Lindblom’s claims of age discrimination, retaliation, and hostile

work environment. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

       Summary judgment on the April 2005 denial of promotion claim was proper


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
because Lindblom failed to meet his burden of demonstrating, or raising a genuine

issue of material fact as to whether, the legitimate, nondiscriminatory reasons

articulated by the Army for not promoting him were actually a pretext for

discrimination. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir.

2005). The mere fact that Lindblom had supervisory experience does not

demonstrate the Army’s stated reasons for not promoting him were pretextual in

light of the uncontradicted evidence that the individuals the Army hired for the

WL-7 positions had significant, comparable supervisory experience, and that these

individuals performed and scored better than Lindblom during the interview and

evaluation process. Similarly, a union representative’s statements that Lindblom

should have scored higher based on his experience and did well in the interview do

not demonstrate pretext in light of that same union representative’s statements that

Lindblom did not adequately convey his experience throughout the hiring process

and that Lindblom “literally read prepared responses to the panel members.”

Furthermore, the other union representative stated that the candidates “were all

treated equally”; that there was no preferential treatment; that Lindblom should

have done better during the interview; and that Lindblom failed to mention

important elements of his experience that may have allowed him to receive a

higher score.


                                          2
      Summary judgment on Lindblom’s claim of discrimination and retaliation in

relation to the WG-8 positions was proper. Lindblom neither applied for the

positions nor demonstrated that his application for the positions would have been

futile. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (holding

that to establish a claim for discrimination, a plaintiff must demonstrate that he

actually “applied and was qualified for” the position) (emphasis added); Int’l Bhd.

of Teamsters v. United States, 431 U.S. 324, 365-68 (1977) (holding that a plaintiff

who did not apply for a position can still make prima facie showing if he can

demonstrate his application for the position would have been futile). Further,

Lindblom admitted that his promotion to the temporary WL-7 position was not

intended by the Army to deceive him into not applying for the WG-8 positions.

      Summary judgment on Lindblom’s hostile work environment claim was

proper because the actions he complains of did not create a workplace that was

“permeated with discriminatory intimidation, ridicule, and insult,” “sufficiently

severe or pervasive to alter the conditions of [Lindblom’s] employment and create

an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (internal quotation omitted).

      AFFIRMED.




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