                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 17 2015

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



                            FOR THE NINTH CIRCUIT


PETER B. ROLLINS,                                No. 13-16748

              Plaintiff - Appellant,             D.C. No. 5:12-cv-02047-PSG

 v.
                                                 MEMORANDUM*
RAYMOND E MABUS, Jr., Secretary of
the Navy; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Paul S. Grewal, Magistrate Judge, Presiding

                          Submitted November 18, 2015**
                             San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Plaintiff-Appellant Peter Rollins (“Rollins”) appeals the district court’s grant

of summary judgment in favor of Defendant-Appellee Raymond Mabus, Secretary

of the Navy (“the Navy”). We reverse.

        *
             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).
1.    In ruling on the Navy’s motion for summary judgment, the district court

properly precluded consideration of any claim except for Rollins’s Title VII race

discrimination claim. Rollins’s original complaint alleged Title VII discrimination

and retaliation claims along with several tort claims. The Navy moved to dismiss

all but Rollins’s race discrimination claim. Rather than oppose the motion to

dismiss, Rollins filed a Statement of Non-Opposition. Rollins then stipulated to a

dispositive order that dismissed with prejudice “all claims against all defendants

except plaintiff’s claim for discrimination under Title VII against Raymond E.

Mabus, Secretary of the Navy, based on plaintiff being charged with AWOL and

receiving a Decision on his Proposed Suspension.” By not opposing the motion to

dismiss and agreeing to the dispositive order, Rollins abandoned all claims except

for his Title VII discrimination claim. Carvalho v. Equifax Info. Servs., LLC, 629

F.3d 876, 888 (9th Cir. 2010) (“A plaintiff who makes a claim . . . in his complaint,

but fails to raise the issue in response to a defendant’s motion to dismiss . . . , has

effectively abandoned his claim, and cannot raise it on appeal.”).

2.    The district court erred when it granted summary judgment in favor of the

Navy on Rollins’s sole remaining claim. Rollins established a prima facie case of

race discrimination under the McDonnell Douglass burden-shifting framework.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although the Navy


                                            2
articulated a legitimate non-discriminatory reason for charging Rollins with

AWOL and proposing a fourteen-day suspension, Rollins’s opposition raised a

triable issue of material fact that the Navy’s reason was pretextual. Viewing all

facts in the light most favorable to Rollins, both Salvador Araujo and Robert

Kremer were similarly situated individuals who were treated more favorably than

Rollins for similar misconduct. Comparator “employees need not be identical, but

must be similar in material respects.” Earl v. Nielsen Media Research, Inc., 658

F.3d 1108, 1114 (9th Cir. 2011); see also Vasquez v. Cnty. of Los Angeles, 349

F.3d 634, 641 (9th Cir. 2003) (holding that “individuals are similarly situated when

they have similar jobs and display similar conduct.”). Here, Rollins, Araujo, and

Kremer were all federal civilian police officers who violated their employer’s leave

policies, which Rollins argued served the same purpose of ensuring an adequate

workforce. Although Araujo and Kremer both amassed a substantial record of

excessive sick leave over several months, each received only a warning letter that

was explicitly “not a disciplinary action.” By contrast, Rollins’s failure to obtain

prior approval for one day of leave resulted in a charge of AWOL and notice of

fourteen-day suspension. Whether Araujo and Kremer were “similarly situated” is

a material “question of fact” that must be answered by a jury. Earl, 658 F.3d at

1116.


                                           3
      Further, the district court erroneously found that Rollins’s “insubordination”

was an “additional basis for his suspension” and for “distinguishing him from

Araujo and Kremer.” Rollins’s notice of proposed suspension did not mention

“insubordination,” and the human resources employee who reviewed the notice

stated in her deposition that insubordination was not a reason provided to Rollins

for his suspension. Therefore, it was disputed whether Rollins was treated less

favorably than Araujo and Kramer and whether insubordination justified the

adverse employment actions at issue. Given these material factual disputes, the

district court erred in granting summary judgment in favor of the Navy.

      AFFIRMED in part, REVERSED in part, and REMANDED.

      The parties shall bear their own costs on appeal.




                                         4
                                                                             FILED
Rollins v. Mabus, No. 13-16748                                               DEC 17 2015

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



KLEINFELD, Senior Circuit Judge, concurring in part and dissenting in part:



      I respectfully dissent from the decision to reverse and remand the district

court’s grant of summary judgment on Rollins’ discrimination claim. I concur in

the decision affirming the district court’s dismissal of his remaining claims.



      Rollins’ evidence did not show that Araujo and Kremer were similarly

situated individuals treated more favorably than him for similar misconduct.1



      Both Araujo and Kremer were warned and required to obtain doctors’ notes

in the future for suspected misuse of sick leave. Rollins was disciplined more

harshly than them for being absent without leave. Though other employers might

treat both sorts of absences as equivalent, the Navy did not. The Navy treats

AWOL as a much more serious offense.2 Rollins compounded his unexcused


      1
          Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1114 (9th Cir. 2011).
      2
         Compare Suppl. ER 398 (when sick leave abuse is suspected, a supervisor
may issue a letter of requirement, requiring the employee to obtain a doctor’s note
for each subsequent day of sick leave requested), and id. at 572 (same), with id. at

                                          1
absence by refusing to return to work when his supervisor ordered him to. And he

had a prior incident in his disciplinary record. Neither Araujo nor Kremer had

similarly refused direct orders or had prior disciplinary records. The only other

evidence about an AWOL employee was testimony about a white officer who, like

Rollins, was recommended for suspension for being AWOL. The white officer

was later terminated for his conduct. Rollins retired with full benefits.



      The record does not support the inference that Rollins’ supervisors

discriminated against him on account of race. The supervisor who notified Rollins

of the proposed suspension for being AWOL got Rollins the job at Monterey in the

first place, and lived with Rollins for a time. They were apparently friends until

Rollins evicted his supervisor for failing to pay rent. Even if some personal

hostility rather than work performance motivated the discipline, this history only

supports an inference of a hostile relationship based on a dispute over money, not

race. Kenneth Bench, the supervisor who initially lowered Rollins’ proposed

suspension from 14 to 7 days, also offered Rollins the alternative dispute



573 (AWOL “will be charged to an employee who absents [himself] from an
appointed place of duty without approval,” and results in mandatory disciplinary
action), and id. at 375 (punishment for AWOL first offenses ranges from
reprimand to removal, and 5 day suspension to removal for second offenses).

                                           2
agreement, under which Rollins served a probationary period and ended up never

serving an unpaid suspension. Jeffrey Pray, the supervisor who did not authorize

Rollins’ leave in July 2010 and reported him AWOL, continued to approve

Rollins’ leave requests after the AWOL incident. There is no genuine issue of fact

supported by evidence cognizable under Rule 56 as to whether Rollins was

discriminated against based on his race.




                                           3
