                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WANDA THOMAS,                                    No.   14-16669

              Plaintiff-Appellant,               D.C. No.
                                                 1:12-cv-00535-LEK-KSC
 v.

RYAN D. MCCARTHY, Acting                         MEMORANDUM*
Secretary, Department of the Army,

              Defendant-Appellee.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                           Submitted August 14, 2017**
                             San Francisco, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and WATTERS,***

District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
      In December, 2011, Thomas joined an action in the District of Hawaii with

nine other plaintiffs against the Secretary of the Army (the Army), alleging

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et. seq.

and denial of Equal Protection under the Fifth Amendment.

      The district court severed Thomas’s claims, and granted summary judgment

in favor of the Army on the basis that Thomas failed to exhaust her administrative

remedies and, in the alternative, that her claims failed on the merits. Thomas

moved for reconsideration, arguing that administrative exhaustion would be futile,

and, alternatively, that dismissal of her Title VII claim violated the International

Convention on the Elimination of All Forms of Racial Discrimination (Treaty),

660 U.N.T.S. 195, entered into force on January 4, 1969. The court denied

Thomas’s motion as meritless.

      We review a district court’s grant of a motion for summary judgment de

novo and a denial of a motion for reconsideration for abuse of discretion. See

Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013). A district court’s

decision to order separate trials is also reviewed for an abuse of discretion. See

Rush v. Sport Chalet, Inc., 779 F.3d 973, 974 (9th Cir. 2015).

      1.     Treaties that are not self-executing do not create “obligations

enforceable in the federal courts.” Sosa v. Alvarez-Machain, 542 U.S. 692, 735


                                           2
(2004). Because Title VII cannot be preempted by a non-enforceable treaty, the

district court did not abuse its discretion in denying Thomas’s motion for

reconsideration based on the provisions of the Treaty. See Brown v. General Svcs.

Admin., 425 U.S. 820, 835 (1976) (describing Title VII as “the exclusive judicial

remedy for claims of discrimination in federal employment”).

      2.     We need not determine at this juncture whether a futility exception

should be read into the exhaustion requirements of Title VII because Thomas’s

“bare assertions of futility are insufficient” to demonstrate the existence of a viable

futility claim in any event. Diaz v. United Agr. Employee Welfare Ben. Plan & Tr.,

50 F.3d 1478, 1485 (9th Cir. 1995).

      3.     Summary judgment under Title VII is appropriate where no material

issue of fact is raised. See Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 686

(9th Cir. 2017). Because Thomas failed to raise a material issue of fact as to her

Title VII claims, the district court did not err in granting summary judgment in

favor of Defendant. As the district court noted, any conflict between Thomas and

her supervisor arose from performance issues and personal incompatibility rather

than racial discrimination. In addition, Thomas was unable to identify any

protected activity that could serve as the basis for a claim of retaliation.




                                            3
      4.     Severance of a party’s claims for a separate trial is not an abuse of

discretion if the district court determines that the party’s injuries are “distinct and

independent” from that of the other parties. See Rush, 779 F.3d at 975. As the

district court found, Thomas’s claims were distinct from those of the other

plaintiffs temporally and in terms of her work assignment. Therefore, the district

court acted within its discretion in severing Thomas’s claims.

      AFFIRMED.




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