                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 07 2011

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



                            FOR THE NINTH CIRCUIT



DARNELL J. NELSON,                               No. 09-35940

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01034-JCC

  v.
                                                 MEMORANDUM **
TIMOTHY F. GEITHNER, Secretary of
the Treasury Department,*

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                          Submitted December 14, 2010 ***

Before:       GOODWIN, WALLACE, and THOMAS, Circuit Judges.

       Darnell J. Nelson, an attorney formerly employed by the Internal Revenue

Service (“IRS”), appeals pro se from the district court’s summary judgment in his


          *
             Timothy F. Geithner has been substituted for his predecessor, Henry
Paulson, as Secretary of the Treasury under Fed. R. App. P. 43(c)(2).

       **    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).
employment action alleging race, sex, age, and disability discrimination, hostile

work environment, retaliation, and failure to accommodate. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Vasquez v. Cnty. of Los Angeles, 349

F.3d 634, 639 (9th Cir. 2003), and we affirm.

       The district court properly granted summary judgment on the discrimination

and retaliation claims because Nelson failed to raise a triable issue that the IRS’s

proffered nondiscriminatory reasons for its adverse employment actions, such as

his poor performance evaluation, failure to receive a raise, placement on a

performance improvement plan, and termination, were pretextual. See id. at 640-

42, 646.

       The district court properly granted summary judgment on the hostile work

environment claim because Nelson failed to raise a triable issue that he was

subjected to any conduct because of his membership in a protected class. See id. at

642.

       The district court properly granted summary judgment on Nelson’s

accommodation claim because he failed to raise a triable issue as to whether he

was entitled to an accommodation for his alleged disability or whether the IRS

failed to accommodate his alleged disability. See Zivkovic v. S. Cal. Edison Co.,

302 F.3d 1080, 1089 (9th Cir. 2002) (an employer is not required to provide the



                                           2                                     09-35940
accommodation that the employee requests or prefers, but need only provide a

reasonable accommodation).

      We do not consider Nelson’s contentions raised for the first time in his reply

brief. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).

      Nelson’s remaining contentions are unpersuasive.

      AFFIRMED.




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