                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       DEC 22 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 FREDERICK J. KILLIAN,                            No. 15-56297

               Plaintiff-Appellant,               D.C. No. 3:12-cv-00828-JLS-DHB

   v.
                                                  MEMORANDUM**
 ASHTON B. CARTER,* et al.

               Defendants-Appellees.

                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                           Submitted December 14, 2016***

Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.

        Frederick J. Killian appeals pro se from the district court’s summary

judgment in his employment action alleging discrimination in violation of the



        *
             Ashton B. Carter is substituted for his predecessor, Leon Panetta, as
Secretary of Defense under Fed. R. App. P. 43(c)(2).
        **
             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).
Age Discrimination in Employment Act (“ADEA”). We have jurisdiction under

28 U.S.C. § 1291. We review de novo, Cotton v. City of Alameda, 812 F.2d 1245,

1247 (9th Cir. 1987), and we affirm.

      The district court properly granted summary judgment because Killian failed

to raise a genuine dispute of material fact as to whether defendant’s legitimate,

non-discriminatory reason for declining to interview or hire him was pretext for

discrimination on the basis of Killian’s age. See France v. Johnson, 795 F.3d

1170, 1173-75 (9th Cir. 2015) (explaining burden shifting framework for analyzing

an ADEA claim on summary judgment, and setting forth plaintiff’s burden in

raising a genuine dispute of material fact as to pretext); see also Coleman v.

Quaker Oats Co., 232 F.3d 1271, 1284-85 (9th Cir. 2000) (concluding stray

remarks by members of management and unwise business judgments were not

sufficient to raise a genuine dispute of material fact as to whether defendant’s

proffered reasons were pretextual).

      We reject as without merit Killian’s contentions regarding the district court’s

failure to hold a trial and handling of discovery.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).




                                           2                                      15-56297
       Killian’s request that the court vacate testimony, set forth in his opening

brief, is denied.

       Killian’s scheduling request, filed on June 20, 2016, is denied as

unnecessary.

       AFFIRMED.




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