                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JESSE BLOUNT, III,                               No. 13-17319

              Plaintiff - Appellant,             D.C. No. 3:11-cv-02227-CRB

 v.
                                                 MEMORANDUM*
MORGAN STANLEY SMITH BARNEY,
LLC and JIM NIELSEN, as an individual,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                     Argued and Submitted December 11, 2015
                             San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges and SMITH,** Chief District
Judge.

      Jesse Blount appeals from the district court’s summary judgment in his

employment action alleging racial discrimination and retaliation in violation of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
federal and California law. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo, Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.

2010), and we affirm.

      The district court properly granted summary judgment on Blount’s racial

discrimination claims under Title VII and California’s Fair Employment and

Housing Act (FEHA). Some of the incidents identified by Blount did not constitute

adverse employment actions as a matter of law. See Chuang v. Univ. of Cal. Davis

Bd. of Trs., 225 F.3d 1115, 1125 (9th Cir. 2000) (defining “adverse employment

action” for purposes of a discrimination claim); see also Brooks v. City of San

Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (same analysis applies to Title VII and

FEHA claims). Blount also failed to raise a genuine dispute of material fact as to

whether MSSB’s legitimate, non-discriminatory reasons for its conduct were

pretextual. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112–13 (9th

Cir. 2011) (describing plaintiff’s burden to demonstrate pretext).

      The district court also properly granted summary judgment on Blount’s

retaliation claims under Title VII and FEHA. Some of the alleged retaliatory

actions identified by Blount were not adverse as a matter of law. See Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (defining adversity for

purposes of a retaliation claim). Blount also failed to raise a genuine dispute of


                                          2
material fact as to whether MSSB’s legitimate, non-discriminatory reasons for its

actions were pretextual or whether there was a causal link between his protected

activity and the alleged adverse employment actions. See Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (requiring plaintiffs to demonstrate

that the protected activity “was a but-for cause of the alleged adverse action by the

employer”).

       Finally, the district properly granted summary judgment on Blount’s claim

of failure to prevent discrimination and retaliation under Title VII and California

law. Blount has failed to sustain an underlying discrimination or retaliation claim

upon which he can base a failure to prevent claim.

       Because the district court did not err in granting summary judgment on

Blount’s claims, it also did not err in its order as to costs.

       AFFIRMED.




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