                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LAL DEV,                                         No. 14-15431

              Plaintiff - Appellant,             D.C. No. 2:11-cv-02950-JAM-
                                                 EFB
 v.

PATRICK R. DONAHOE, Postmaster                   MEMORANDUM*
General of the United States,

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                          Submitted September 14, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

      Lal Dev appeals the district court’s award of summary judgment in favor of

Patrick Donahoe, Postmaster General of the United States, in an action under Title

VII of the Civil Rights Act. 42 U.S.C. § 2000e-2(a)(1). Dev, a carrier for the U.S.

        *
             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).
Postal Service, alleges that Donahoe took several actions that adversely affected

Dev’s employment on account of Dev’s race and gender. We have jurisdiction to

review the district court’s award of summary judgment under 28 U.S.C. § 1291,

and we affirm.

      Dev provided no basis for striking Donahoe’s declaration and exhibit

purporting to show that Donahoe served a response to Dev’s 190 requests for

admission (RFA) on May 4, 2012, within 30 days of service of the RFA. Fed. R.

Civ. P. 36(a)(3). Because the RFA was only considered admitted on the condition

that it was unopposed, the proof of service shows that the RFA was never granted,

either explicitly or automatically. In the alternative, Donahoe moved for

withdrawal of any deemed admission, and the district court did not err in granting

that motion pursuant to Federal Rule of Civil Procedure 36(b). Deeming the RFA

granted would undermine the “presentation of the merits of the action,” and Dev

failed to provide any showing that the “withdrawal or amendment w[ould]

prejudice [him] in maintaining the action or defense on the merits.” Conlon v.

United States, 474 F.3d 616, 622 (9th Cir. 2007).

      Dev’s claims that the Postmaster discriminated against Dev by denying

Dev’s request for a “high option” on Route 8, declining to nullify the results of the

2010 National Count, delaying for seven months a response to Dev’s request for


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new mail labels and a new delivery-point sequence, and failing to assign Dev to a

204b temporary supervisor position were properly dismissed because Dev failed to

establish a prima facie case of disparate treatment. In each instance, there was

insufficient evidence that Dev was treated differently than “similarly situated”

employees who were not a member of Dev’s protected classes. Cornwell v.

Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Even if Dev

established a prima facie case of gender discrimination in the re-allocation of

territory from the “consolidated” Routes 18 & 19, Dev failed to raise a triable

question of fact on whether the Postmaster’s stated reason for excluding Dev—that

he did not apply for territory—was a “pretext for discrimination.” Lindahl v. Air

France, 930 F.2d 1434, 1437 (9th Cir. 1991).

      Dev failed to maintain his hostile work environment claim in summary

judgment proceedings before the Magistrate Judge, and the district court

considered the issue waived. We also consider the issue waived. See United States

v. Kitsap Physicians Serv., 314 F.3d 995, 999 (9th Cir. 2002).

      The Magistrate Judge did not err in denying Dev’s motion to disqualify

himself. A judge is required to “disqualify himself in any proceeding in which his

impartiality might reasonably be questioned” and in proceedings “[w]here he has a


                                          3
personal bias or prejudice concerning a party.” 28 U.S.C. § 455. Disqualification

is required if a “reasonable person with knowledge of all the facts would conclude

that the judge’s impartiality might reasonably be questioned.” United States v.

Holland, 519 F.3d 909, 913 (9th Cir. 2008) (quoting Clemens v. U.S. Dist. Court,

428 F.3d 1175, 1178 (9th Cir. 2005)). Here Dev asserts that impartiality can be

questioned because of the Magistrate Judge’s familiarity with the U.S. Attorney’s

Office from his time as an employee in that office. Dev also asserts that the

Magistrate Judge’s rulings against Dev demonstrate bias. The Magistrate Judge

did not abuse his discretion in denying the motion to disqualify. Milgard

Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 714 (9th Cir. 1990).

      AFFIRMED.




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