                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 12 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRANK JOSEPH CARDERELLA,                         No. 10-56637

              Plaintiff - Appellant,             D.C. No. 2:09-cv-08299-R-MAN

  v.
                                                 MEMORANDUM*
JANET NAPOLITANO, as Secretary of
the Department of Homeland Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                            Submitted March 7, 2012**
                               Pasadena, California

Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.

       Plaintiff-Appellant Frank Joseph Carderella (“Carderella”) appeals the grant

of summary judgment entered by the United States District Court for the Central



        *
             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).
District of California in favor of Defendant-Appellee Janet Napolitano

(“Napolitano”), the Secretary of the Department of Homeland Security.1

Carderella, a white, Catholic male of Italian ancestry, alleges that the former

Immigration and Naturalization Service (“INS”) discriminated against him on the

basis of his race or national origin in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-16 et seq. (“Title VII”), when it did not select him in

1996 to fill a vacant Detention Enforcement Officer position (“DEO”).2 The

district court held that Carderella failed to establish a prima facie case of

employment discrimination and declined to draw an adverse inference from the

spoliation of the records. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      The district court did not err in finding that Carderella failed to establish a

prima facie case of employment discrimination. Texas Dept. of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252–53 (1981). Carderella acknowledges that he has no

information regarding the race or national origin of the individuals ultimately

selected for the vacant DEO positions. See McDonnell Douglas Corp. v. Green,


      1
             The functions of the INS were transferred to the Department of
Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, § 471,
116 Stat. 2135, 2205.
      2
             The parties are familiar with the facts so we do not repeat them here.
                                           2
411 U.S. 792, 802 (1973) (holding that to establish a prima facie case of

employment discrimination under Title VII, an individual must show, inter alia,

that the position remained open and the employer sought other similarly qualified

individuals outside his protected class).

      The district court did not abuse its discretion when it declined to draw an

adverse inference of discrimination against Napolitano as a sanction for the

spoliation of the documents. Medical Lab. Mgt. Consultants v. Am. Broadcasting

Cos. Inc., 306 F.3d 806, 823–24 (9th Cir. 2002). The record suggests the

employee files may have been lost or destroyed pursuant to the INS’s internal two-

year retention policy and therefore were not destroyed in bad faith or in

anticipation of litigation, which commenced over a decade after Carderella filed his

initial employment discrimination claim with the EEO. See e.g., United States v.

Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002); Akiona v. United

States, 938 F.2d 158, 161 (9th Cir. 1991). Regardless, Carderella’s reliance on the

spoliated evidence alone would be insufficient to prove a prima facie case of

employment discrimination. See Medical Lab. Mgt. Consultants, 306 F.3d at 825

(“When a party has produced no evidence—or utterly inadequate evidence—in

support of a given claim, the destruction of evidence, standing alone, is not enough




                                            3
to allow the party to survive summary judgment on that claim.” (internal quotation

marks and citations omitted)).

      Finally, Carderella’s request for judicial notice of portions of Rafael

Roldan’s deposition is denied. Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir.

2007).

      AFFIRMED.




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