                                                                          FILED
                           NOT FOR PUBLICATION                            AUG 15 2014

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



                            FOR THE NINTH CIRCUIT


GARY B JEFFERSON,                               No. 12-57174

              Plaintiff - Appellant,            D.C. No. 2:11-cv-05637-GW-CW

  v.
                                                MEMORANDUM*
TIME WARNER CABLE ENTERPRISES
LLC,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                           Submitted August 12, 2014**
                             San Francisco, California

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

       Gary Jefferson appeals pro se from an adverse grant of summary judgment to

Time Warner Cable (“TWC”) on several claims brought under various federal anti-

discrimination statutes and California law. We have jurisdiction under 28 U.S.C.

        *
             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).
§ 1291. We may affirm the district court on any basis supported by the record.

Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992). Reviewing

de novo, Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011), we affirm.

              AMERICANS WITH DISABILITIES ACT CLAIMS

1.    The district court properly limited the scope of its subject matter jurisdiction

to the factual allegations in Jefferson’s EEOC complaint, E.E.O.C. v. Farmer Bros.

Co., 31 F.3d 891, 899 (9th Cir. 1994), narrowing its consideration of Jefferson’s

challenge to TWC’s implementation of Scorecard and its decision to use a

performance-based scheduling system. Both are described in the EEOC complaint.

Any other conduct falls outside the district court’s jurisdiction.

      To show a prima facie case of disparate treatment under the ADA, Jefferson

must show that, within the meaning of the statute, he: “(1) is disabled; (2) is qualified;

and (3) suffered an adverse employment action because of [his] disability.” Snead v.

Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). Jefferson must

also show that the complained-of action “materially” affected a term of his

employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Because

Jefferson failed to produce any evidence tending to show that either the issuance of




                                            2
verbal warnings or the rescheduling of his shift materially affected the terms of his

employment, TWC is entitled to judgment as a matter of law on this claim.1

2.    To survive summary judgment on a disparate impact claim, a plaintiff must

provide at least some evidence, direct or circumstantial, that a facially neutral policy

falls more harshly on a protected group than the whole. Lopez v. Pac. Maritime Ass’n,

657 F.3d 762, 766 (9th Cir. 2011). Here, Jefferson merely alleges that TWC’s failure

to modify Scorecard for disabled employees has a disparate impact on all disabled

workers. Jefferson has produced no evidence suggesting a group or defined subgroup

of disabled employees bears a greater burden under the Scorecard or shift-scheduling

policies. See id. at 767.

3.    To the extent Jefferson administratively exhausted his failure to accommodate

claim and participated in the interactive process, he must show “(1) he is disabled

within the meaning of the ADA; (2) he is a qualified individual able to perform the

essential functions of the job with reasonable accommodation; and (3) he suffered an

adverse employment action because of his disability.” Allen v. Pac. Bell, 348 F.3d




      1
        Assuming, without deciding, that there is an independent cause of action for
harassment under the ADA, Jefferson’s claim fails for the same reason—he has shown
no material harm. See Brown v. City of Tucson, 336 F.3d 1181, 1190 & n.14 (9th Cir.
2003) (recognizing that other circuits have recognized such a claim, but declining to
reach the question).
                                           3
1113, 1114 (9th Cir. 2003) (per curiam). Here, Jefferson is unable to perform the

essential functions of his job with a reasonable accommodation. See Samper v.

Providence St. Vincent Medical Center, 675 F.3d 1233, 1237–38 (9th Cir. 2012)

(employee unable to adhere to attendance policy was not a qualified individual and

exemption from attendance policy was unreasonable where regular on-site attendance

was essential function of the job).

        AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS

1.    To survive a motion for summary judgment on a disparate treatment claim,

Jefferson must produce some evidence, either direct or circumstantial, tending to show

that TWC took an adverse employment action against him because of his age.

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280–81 (9th Cir. 2000); Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996). While Jefferson’s

burden of production at this stage of the litigation is minimal, Jefferson has produced

no evidence suggesting that use of the Scorecard system or TWC’s decision to

reschedule him from his daytime shift materially affected his employment. Jefferson

also failed to present any evidence suggesting that these actions were “because of”

Jefferson’s or any other employee’s age. Pottenger v. Potlatch Corp., 329 F.3d 740,

745 (9th Cir. 2003).




                                          4
2.    Similarly, Jefferson’s disparate impact claim under the ADEA fails because he

produced no evidence, direct or circumstantial, showing “(1) the occurrence of certain

outwardly neutral employment practices, and (2) a significantly adverse or

disproportionate impact on persons of a particular age produced by the employer’s

facially neutral acts or practices.” Id. at 749 (brackets and internal quotations marks

omitted).

               FAMILY AND MEDICAL LEAVE ACT CLAIM

      Jefferson’s interference claim fails because the heart of it—his allegation that

Scorecard prohibited him from earning bonuses while on protected leave—is not

cognizable under the FMLA. See 29 C.F.R. § 825.215(c)(2) (“[I]f a bonus or other

payment is based on the achievement of a specified goal such as hours worked,

products sold or perfect attendance, and the employee has not met the goal due to

FMLA leave, then the payment may be denied, unless otherwise paid to employees

on an equivalent leave status for a reason that does not qualify as FMLA leave.”).2

                            PROCEDURAL CLAIMS

      Finally, Jefferson argues the district court improperly denied his motion for

reconsideration and relief from the judgment. Reviewing for an abuse of discretion,



      2
       Jefferson does not claim that Scorecard distinguishes between protected and
unprotected leave.
                                          5
Swimmer v. I.R.S., 811 F.2d 1343, 1345 (9th Cir. 1987) (Rule 59), abrogated on other

grounds, Briones v. Riviera Hotel & Casino, 133 F.3d 379, 382 (9th Cir. 1997); S.E.C.

v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001) (Rule 60), we affirm. The district

court repeatedly suggested that Jefferson obtain counsel, referred Jefferson to the

court’s pro se resource center, and afforded Jefferson multiple opportunities to cure

his defective filings. In light of these efforts, the district court neither abused its

discretion nor violated Jefferson’s due process rights when it construed Jefferson’s

motion as one brought under Federal Rules of Civil Procedure 59 and 60 and denied

relief. Jacobsen v. Filler, 790 F.2d 1362, 1364–65 & nn.5 & 7 (9th Cir. 1986).3

      AFFIRMED.




      3
        We summarily affirm the district court’s grant of summary judgment on
Jefferson’s other claims against TWC, including claims for breach of fiduciary duty,
fraud, and breach of contract. These claims have no basis in the law.
       To the extent Jefferson appeals from the district court’s denial of his motion to
amend his complaint, we hold Jefferson waived this argument by failing to adequately
address this issue in his opening brief. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999).
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