                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CARLOS VILLALTA; ANTHONY                         No. 10-16006
PADILLA; GILBERT GUERRA;
DANIEL PEREZ,                                    D.C. No. 3:08-cv-04958-CRB

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

CITY AND COUNTY OF SAN
FRANCISCO,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                             Submitted August 9, 2011
                             San Francisco, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and BEA, Circuit Judges.

       Gilberto Guerra, Daniel Perez, Anthony Padilla, and Carlos Villalta appeal

from a grant of summary judgment to the City and County of San Francisco

Municipal Transportation Agency (“MTA”) on their Title VII disparate treatment


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
claims. We have jurisdiction pursuant to 12 U.S.C. § 1291. Reviewing de novo,

Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 747 (9th Cir. 2010), we

affirm.

      Guerra failed to establish a prima facie case of workplace discrimination or

retaliation because restricting his access to a computer database and to a

photocopier did not “materially affect the compensation, terms, conditions, or

privileges of employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th

Cir. 2008) (discussing the third element of disparate impact claims) (internal

alterations omitted); see Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.

2000) (applying similar standard to retaliation).

      Even assuming Perez made out a prima facie case of discrimination, his

work-related misconduct constituted a “legitimate, nondiscriminatory reason” for

his dismissal. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th

Cir. 2006) (internal quotation marks omitted). Perez adduced no evidence that the

employer’s reason was pretextual.

      Padilla and Villalta each made out prima facie cases of disparate treatment

by showing that each was passed over for a promotion for which he was qualified

in favor of a Caucasian employee. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889

(9th Cir. 1994). But MTA brought forward admissible evidence that it promoted


                                          2
individuals who were rated as more highly qualified than either Padilla or Villalta

during the interview process. And unlike the plaintiffs, neither had disciplinary

records. Neither Padilla nor Villalta has brought forth evidence creating a triable

issue of fact as to whether MTA’s explanation was “unworthy of credence.”

Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037, 1040–41 (9th Cir.

2005) (applying the standard enunciated by Costa v. Desert Palace, Inc., 539 U.S.

90 (2003)).

      For the foregoing reasons, the district court’s summary judgment in favor of

MTA is AFFIRMED.




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