                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 14 2015

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

FRED B. SALAS,                                   No. 13-35504

              Plaintiff - Appellant,             D.C. No. 2:11-cv-01748-RAJ

 v.
                                                 MEMORANDUM*
INDEPENDENT ELECTRICAL
CONTRACTORS INC, Education
Training Fund and IES COMMERCIAL
INC,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding

                             Submitted May 5, 2015**
                               Seattle, Washington




        *
             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: GOULD and CHRISTEN, Circuit Judges and BLOCK,*** Senior District
Judge.

      In this employment discrimination case, Salas appeals the district court’s

decision to grant summary judgment to Independent Electrical Contractors, Inc.

(“IEC”), and IES Commercial, Inc. (“IES”).1 We affirm the district court’s

judgment.

      1.        Salas’s opening brief fails to comply with Federal Rule of Appellate

Procedure 28(a)(8)(A) because its argument section omits citations to the record.

See Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1181 (9th Cir. 2008).

But appellees do not dispute the pertinent facts or claim that they have been

prejudiced by the omission, and other sections of Salas’s opening brief—as well as

his reply brief—do cite the record. We therefore exercise our discretion to reach

the merits.

      2.        The district court properly granted summary judgment to IEC. Under

Title VII, IEC is not a “joint labor-management committee” because IEC does not

have a labor component. See 42 U.S.C. § 2000e-2(d); Eldredge v. Carpenters 46

N. Cal. Cntys. Joint Apprenticeship & Training Comm., 662 F.2d 534, 535–36 (9th


          ***
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      1
                The parties are familiar with the facts, so we do not recount them here.

                                            2
Cir. 1981). Nor is it an employer under Title VII, the ADEA, or the WLAD

because it has only five employees. See 42 U.S.C. § 2000e(b) (Title VII, requiring

15 or more employees); 29 U.S.C. § 630(b) (ADEA, requiring 20 or more

employees); Wash. Rev. Code § 49.60.040(11) (WLAD, requiring eight or more

employees). Finally, IEC was not subject to Washington Revised Code

§ 49.44.090 because Salas was a tuition-paying apprentice of IEC, not an

employee.

      3.     The district court also properly granted summary judgment to IES on

Salas’s disparate treatment claims. Salas failed to establish a prima facie case of

disparate treatment because he did not perform satisfactorily at IES. And though

he acknowledged that he was not allowed to work on any energized circuits, Salas

opened an electrical panel cover in direct violation of IES’s safety policy.

      4.     The district court properly granted summary judgment to IES on

Salas’s disparate impact claims under the ADEA and state law. Salas failed to

present any evidence of disparate impact at IES. See Rose v. Wells Fargo & Co.,

902 F.2d 1417, 1421 (9th Cir. 1990) (“[T]he plaintiff must actually prove the

discriminatory impact at issue, rather than merely an inference of discriminatory

impact.”); Oliver v. Pac. Nw. Bell Tel. Co., Inc., 724 P.2d 1003, 1007 (Wash.




                                          3
1986) (en banc) (“The primary means of proving a substantial disproportionate

impact on a protected class is through the use of statistical evidence.”).

      5.      The district court did not abuse its discretion by denying Salas leave

to amend his complaint to include disparate impact claims under Title VII. Salas

did not allege disparate impact in his EEOC charge of discrimination. He therefore

failed to exhaust administrative remedies. The district court properly concluded

that it lacked jurisdiction over any disparate impact claims under Title VII and that

amendment would be futile. See Paige v. California, 102 F.3d 1035, 1041 (9th

Cir. 1996).

      6.      The district court did not abuse its broad discretion by denying Salas’s

third motion to continue. It granted Salas two prior continuances, and the record

contains no indication that a third continuance was warranted or that the court’s

denial was “‘arbitrary or unreasonable.’” See United States v. Kloehn, 620 F.3d

1122, 1127 (9th Cir. 2010) (quoting United States v. Flynt, 756 F.2d 1352, 1358

(9th Cir. 1985)).

      7.      The district court’s finding of no spoliation is not clearly erroneous.

Salas made no showing that IES or IEC destroyed evidence, much less that they

engaged in such destruction because the evidence was potentially relevant to the

litigation. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th


                                           4
Cir. 2002) (“Defendants engage in spoliation of documents as a matter of law only

if they had ‘some notice that the documents were potentially relevant’ to the

litigation before they were destroyed.” (quoting Akiona v. United States, 938 F.2d

158, 161 (9th Cir. 1991)).

      AFFIRMED.




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