                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 19 2012

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



                            FOR THE NINTH CIRCUIT


GLENN S. MILLSAPS, a married man,                No. 11-15948

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00761-ROS

  v.
                                                 MEMORANDUM*
PINAL COUNTY SUPERIOR COURT,
DEPARTMENT OF ADULT
PROBATION, a division of the Supreme
Court of the State of Arizona; PINAL
COUNTY SHERIFF’S OFFICE, an
Arizona law enforcement agency;
COUNTY OF PINAL, a political
subdivision of the State of Arizona,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Arizona
                 Roslyn O. Silver, Chief District Judge, Presiding

                           Submitted October 16, 2012**
                             San Francisco, California



        *
             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).
Before: TALLMAN, CALLAHAN, and HURWITZ, Circuit Judges.

      Plaintiff-appellant Glenn S. Millsaps appeals the district court’s order

granting defendants-appellees’ motions for summary judgment in his Title VII and

42 U.S.C. § 1981 race discrimination action against the Pinal County Superior

Court, Department of Adult Probation (“Superior Court”); Pinal County (“the

County”); and the Pinal County Sheriff’s Office. Millsaps’s claims stem from his

March 20, 2006, termination as a probation officer with the Adult Probation

Department in Pinal County, Arizona, and the August 2007 rejection of his

subsequent application for the position of Detention Captain with Pinal County.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We employ the burden-shifting scheme set out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), to determine whether Millsaps’s discrimination

claim against the Superior Court can survive summary judgment. Aragon v.

Republic Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002). Millsaps

must first establish a prima facie case of racial discrimination; if he is successful,

the burden of production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for terminating Millsaps’s employment. Id. If the

Superior Court does so, Millsaps must demonstrate that the employer’s articulated

reason is a pretext for unlawful discrimination. Id. He could do this by “either


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directly persuading [us] that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Id. at 658–59 (internal quotations and citations omitted).

Millsaps’s evidence must be both specific and substantial to overcome any

legitimate reasons offered by the Superior Court. Id. at 659.

      Assuming, as the district court did, that Millsaps established his prima facie

case, the employer here articulated a legitimate, non-discriminatory business

reason for its decision to terminate Millsaps when it asserted that Millsaps’s job

performance was unsatisfactory. Millsaps failed to carry his burden of showing

that this articulated reason is a pretext for discrimination. He submitted no specific

and substantial evidence of pretext, and thus there is no genuine issue of material

fact requiring a trial on Millsaps’s claims against the Superior Court.

      Employing the same burden-shifting scheme to analyze Millsaps’s

discrimination claim against the County for its subsequent failure to hire, we agree

with the district court that Millsaps did not carry his burden of establishing even a

prima facie case of racial discrimination. A prima facie case of discriminatory

failure to hire requires a showing that: (1) Millsaps belongs to a protected class; (2)

he was qualified for the position; (3) he was rejected despite his qualifications; and

(4) the position remained open. McDonnell Douglas Corp., 411 U.S. at 802. The


                                           3
undisputed evidence in this case demonstrates that Millsaps was not qualified for

the Detention Captain position and that the position did not remain open. Millsaps

has not made out a prima facie case of discrimination under § 1981 and the district

court was correct in granting summary judgment in favor of the County.

      Finally, we hold that the district court did not abuse its discretion in denying

a motion to amend the complaint filed by Millsaps six months after the deadline

specified in the Scheduling Order. “The district court is given broad discretion in

supervising the pretrial phase of litigation, and its decisions regarding the

preclusive effect of a pretrial order . . . will not be disturbed unless they evidence a

clear abuse of discretion.” Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th

Cir. 1985). A deadline established in a Rule 16 scheduling order “may be modified

only for good cause . . . .” Fed.R.Civ.P. 16(b)(4). This “good cause” standard

“primarily considers the diligence of the party seeking the amendment.” Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The district

court’s finding that Millsaps did not meet his burden of showing diligence such

that a modification of the Scheduling Order was warranted was not an abuse of

discretion.

      AFFIRMED.




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