                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 17 2016

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



                            FOR THE NINTH CIRCUIT


JOHN CERVANTES,                                  No. 13-15595

              Plaintiff - Appellant,             D.C. No. 3:11-cv-00242-VPC

 v.
                                                 MEMORANDUM*
EMERALD CASCADE RESTAURANT
SYSTEMS, INC., DBA Jack-in-the-Box,
Inc.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                             for the District of Nevada
                   Valerie P. Cooke, Magistrate Judge, Presiding

                            Submitted March 15, 2016**
                             San Francisco, California

Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.

      This is a Title VII employment discrimination appeal in which the

Plaintiff/Appellant, John Cervantes, prevailed after a jury trial, and now challenges


        *
             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).
the district court’s grant of summary judgment to his former employer, Emerald

Cascade Restaurant Systems d/b/a Jack-in-the-Box, on several discrimination

claims before trial as well as the district court’s decision to reduce punitive

damages. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part,

affirm in part, and remand.

      1. The district court’s decision to reduce punitive damages is reversed and

remanded for reconsideration in light of our intervening decision in Arizona v.

ASARCO, 773 F.3d 1050 (9th Cir. 2014) (en banc).

      2. Cervantes argues the district court erred in granting partial summary

judgment to Emerald Cascade on his claims for retaliation, hostile work

environment, and constructive discharge. We review grants of summary judgment

de novo. F.T.C. v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009). The district

court did not err in granting summary judgment on these three claims as they were

not advanced until Cervantes’s opposition to summary judgment and Cervantes’s

complaint did not give Emerald Cascade notice of these theories of liability, under

the “liberal notice pleading standard” of Fed. R. Civ. P. 8. See Pickern v. Pier 1

Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006). Because “summary judgment

is not a procedural second chance to flesh out inadequate pleadings,” the district

court was correct to grant partial summary judgment on these three theories before


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trial. See Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.

2006) (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)).

      3. In a footnote to his opening brief, Cervantes notes his objection to the

district court’s decision to exclude from trial a comment about flying the American

flag. But Cervantes provides no substantive argument as to how the district court

erred, so he has waived this issue on appeal. See Ghahremani v. Gonzales, 498

F.3d 993, 997-98 (9th Cir. 2007).

      Each party shall bear its own costs.

      AFFIRMED in part; REVERSED in part; and REMANDED on the

first issue only.




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