                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 17 2011

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




                            FOR THE NINTH CIRCUIT



GREGG CONITZ,                                    No. 10-35195

              Plaintiff - Appellant,             D.C. No. 4:09-cv-00020-RRB

  v.
                                                 MEMORANDUM *
TECK ALASKA INCORPORATED,

              Defendant - Appellee,

  and

NANA REGIONAL CORPORATION,

              Defendant-intervenor -
Appellee.



                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted May 3, 2011
                               Anchorage, Alaska

Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Gregg Conitz (“Conitz”) appeals the district court’s grant of summary

judgment in favor of Teck Alaska Incorporated (“Teck”) and NANA Regional

Corporation, Inc. (“NANA”), on his Title VII discrimination claim. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

      Teck’s preference for NANA shareholders applies only when two or more

equally qualified candidates seek promotion to the same position. If one of the

candidates is a NANA shareholder, this factor is used as a tie-breaker. Since this

policy purports to favor candidates because they hold shares in NANA, and not

because they are Alaska Natives, it is not facially discriminatory.

      Because Teck’s policy does not directly discriminate on its face, Conitz must

satisfy the elements of a prima facie case, as laid out in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802 (1973), if his suit is to survive. See

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (noting that

where a Title VII plaintiff fails to present “direct evidence of discrimination,” the

case may still proceed if the McDonnell Douglas factors are satisfied); Bonilla v.

Oakland Scavenger Co., 697 F.2d 1297, 1301–03 (9th Cir. 1982) (applying the

McDonnell Douglas prima facie test to an employment policy favoring

shareholders). To establish a prima facie case, Conitz must show: (1) that he

belonged to a protected class, (2) that he was qualified for the job he sought, (3)


                                           2
that he was subjected to an adverse decision, and (4) similarly situated employees

not in his protected class received more favorable treatment. Anthoine v. N. Cent.

Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010).

      Conitz has not satisfied the McDonnell Douglas test because all the evidence

in the record, aside from Conitz’s own uncorroborated statements, indicates that he

was not qualified for the position that he had sought. See Villiarimo v. Aloha

Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (“[T]his court has refused to

find a genuine issue [of material fact] where the only evidence presented is

uncorroborated and self-serving testimony.” (internal quotation marks omitted)).

Since Conitz was denied promotion based on his lack of qualifications, and not

because of Teck’s shareholder preference, his claims cannot go forward.

      Conitz suggests in the alternative that he could have satisfied the McDonnell

Douglas test had the district court granted his request to conduct further discovery.

We hold that the district court did not abuse its discretion in denying Conitz’s

request. Conitz himself had asked the district court to stay discovery pending

resolution of his motion for a permanent injunction. Conitz’s motion for a

permanent injunction amounted to a request to the district court to decide the full

merits of his case, and the district court said that it would therefore treat the motion

as a motion for summary judgment. Conitz accordingly assumed the risk of


                                           3
inadequate discovery when he requested that the district court rule on his motion

before developing a full record.

      Finally, Conitz asks the court to decide whether Teck’s shareholder

preference policy constitutes racial discrimination in violation of Title VII.

Because Conitz has failed to demonstrate how the policy might have affected him,

we decline to reach this issue.

      AFFIRMED.




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