                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 01 2011

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




                            FOR THE NINTH CIRCUIT



ERICK T. MOORE,                                  No. 10-35976

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00746-AC

  v.
                                                 MEMORANDUM *
PATRICK R. DONAHOE, Postmaster
General,**

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                    Argued and Submitted November 15, 2011
                                Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

       Erick T. Moore (“Moore”) appeals the district court’s order granting

summary judgment to Patrick R. Donahoe, Postmaster General of the United States

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
              Patrick R. Donahoe is substituted for John E. Potter pursuant to F ED.
R. A PP. P. 43(c)(2).
Postal Service (“USPS”), on Moore’s claims for race discrimination and a hostile

work environment, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. (“Title VII”). We affirm.

      The district court did not abuse its discretion by excluding evidence of other

USPS employees’ observations regarding race discrimination. In accordance with

Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 388 (2008), the

district court conducted a thorough, fact-intensive inquiry under Federal Rule of

Evidence 401 before determining that the majority of the evidence was not relevant

to Moore’s claims. The evidence was properly excluded because the USPS

employees were not similarly situated individuals. See Vasquez v. Cnty. of Los

Angeles, 349 F.3d 634, 641 (9th Cir. 2003). None of the USPS employees reported

to Moore’s supervisors, discussed the 204B acting supervisor application process,

or made 204B acting supervisor assignments during or near the summer of 2008.

Thus, there was no error.

      Even assuming Moore established a prima facie case of race discrimination

under Title VII, the USPS rebutted the presumption of discrimination by

articulating a legitimate, nondiscriminatory reason for its failure to provide Moore

with an opportunity to serve as a 204B acting supervisor in July or August 2008.

See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155-56 (9th Cir. 2010). The


                                          2
USPS contends that it did not offer Moore a 204B acting supervisor assignment

during this period because he failed to request such an assignment. Irrespective of

whether this is factually accurate, there is no evidence that the USPS did not

honestly believe its proffered reason. See Villiarimo v. Aloha Island Air, Inc., 281

F.3d 1054, 1062-63 (9th Cir. 2002). Indeed, the record reflects that Moore’s

supervisors were unaware of his interest in a 204B acting supervisor assignment

during the relevant period.

      Moore has failed to present a triable issue through either direct or

circumstantial evidence that the USPS’s explanation was pretextual. Noyes v.

Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007). His conclusory allegations that

his supervisors conspired to prevent him from serving as a 204B acting supervisor

as a result of his outspokenness regarding alleged systemic race discrimination at

the USPS were insufficient to defeat the USPS’s motion for summary judgment.

The USPS was therefore entitled to summary judgment on Moore’s Title VII race

discrimination claim.

      We also agree with the district court that, viewing the evidence in the light

most favorable to Moore, the incidents enumerated by Moore – that he was

temporarily designated to a work assignment that he perceived to be less desirable

and more physically demanding, reprimanded for conversing with African-


                                          3
American co-workers, and restricted from storing clothing or consuming food or

beverages on the workroom floor – were not sufficiently severe or pervasive to

alter the conditions of his employment. See Surrell v. Cal. Water Serv. Co., 518

F.3d 1097, 1108 (9th Cir. 2008). Accordingly, the district court did not err in

granting summary judgment to the USPS on Moore’s hostile work environment

claim under Title VII.

      AFFIRMED.




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