                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 20 2012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



CHRISTIAN BEHREND DOSCHER,                       No. 11-35192

                Plaintiff - Appellant,           D.C. No. 3:10-cv-05545-RBL

  v.
                                                 MEMORANDUM *
SWIFT TRANSPORTATION,

                Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                     Ronald B. Leighton, District Judge, Presiding

                            Submitted November 13, 2012 **

Before:         CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Christian Behrend Doscher appeals pro se from the district court’s summary

judgment in his diversity action arising from his employment with Swift

Transportation. We have jurisdiction under 28 U.S.C. § 1291. We review de




            *
             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).
novo, and may affirm on any ground supported by the record. Enlow v. Salem-

Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004). We affirm in part and

dismiss in part.

      The district court properly granted summary judgment on the claim alleging

wrongful constructive discharge in violation of public policy because Doscher

failed to raise a genuine dispute of material fact that there is a “clear mandate of

public policy” that a load be weighed before a driver leaves a shipper. Hubbard v.

Spokane County, 50 P.3d 602, 606 (Wash. 2002) (“[C]ourts should proceed

cautiously if called upon to declare public policy absent some prior legislative or

judicial expression on the subject.” (citation and internal quotation marks

omitted)); see also Snyder v. Med. Serv. Corp. of E. Wash., 35 P.3d 1158, 1161

(Wash. 2001) (constructive discharge is not a separate cause of action).

      The district court properly granted summary judgment on the claim alleging

breach of promise of specific treatment because Doscher failed to raise a triable

dispute that Swift’s alleged promise to send him only to shippers with scales was

in an “employee manual . . . or similar document.” Korslund v. DynCorp Tri-

Cities Servs., Inc., 125 P.3d 119, 128 (Wash. 2005).

      Summary judgment was proper on the failure-to-accommodate claim

because Doscher failed to raise a triable dispute that the requested accommodation


                                           2                                     11-35192
was “medically necessary.” Riehl v. Foodmaker, Inc., 94 P.3d 930, 934 (Wash.

2004).

         The district court properly granted summary judgment on the fraud claim

because Doscher failed to raise a triable dispute that Swift misrepresented an

existing fact or did not intend to attempt to keep its alleged promise. See Blanton

v. Mobil Oil Corp., 721 F.2d 1207, 1218 (9th Cir. 1983) (“Under Washington law,

promissory fraud only exists when a promise is made with ‘a present intent not to

attempt the future fulfillment of the promise[ ].’” (citation omitted)); Stiley v.

Block, 925 P.2d 194, 204 (Wash. 1996) (elements of fraud).

         The district court properly granted summary judgment on the negligence and

negligent infliction of emotional distress claims because Doscher failed to raise a

triable dispute that Swift owed him a duty to ensure that he could weigh his load

before leaving a shipper. See Strong v. Terrell, 195 P.3d 977, 982 (Wash. Ct. App.

2008) (elements of negligent infliction of emotional distress); Kennedy v. Sea-Land

Serv., Inc., 816 P.2d 75, 84 (Wash. Ct. App. 1991) (elements of negligence).

         The district court properly granted summary judgment on the outrage claim

because Doscher failed to raise a triable dispute that Swift’s conduct was “extreme

and outrageous.” Strong, 195 P.3d at 981 (elements of outrage).




                                            3                                        11-35192
      The district court properly granted summary judgment on the defamation

claim because Doscher failed to raise a triable dispute as to the required elements.

See Mohr v. Grant, 108 P.3d 768, 773 (Wash. 2005) (elements of defamation).

      Contrary to Doscher’s contention, the district court did not err by sua sponte

granting summary judgment to Swift after Doscher moved for summary judgment.

See Bird v. Glacier Electric Coop., Inc., 255 F.3d 1136, 1152 (9th Cir. 2001) (“[A]

court has power sua sponte to grant summary judgment to a non-movant when

there has been a summary judgment motion by one party and no cross-motion.”).

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      We lack jurisdiction to review the district court’s order denying Doscher’s

motion for reconsideration, and therefore dismiss that portion of the appeal. See

Fed. R. App. P. 4(a)(4)(B)(ii) (appellant must file a notice of appeal or amend a

previously filed notice of appeal to secure review of a post-judgment order).

      Doscher’s motion to strike Swift’s response to his citation of supplemental

authorities and request to strike Swift’s opposition to summary judgment and

appendices are denied.

      AFFIRMED in part; DISMISSED in part.




                                          4                                     11-35192
