Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding.
Before GOODWIN, REINHARDT and FERNANDEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
This is the second appeal arising out of claims filed by Cornelius Despanie against his employer, the United States Postal Service and its chief executive ("USPS"). On the first appeal, Despanie contended that, in violation of Title VII, USPS (1) discriminated against him by issuing him a letter of warning for mishandling an overnight mail dispatch, and (2) retaliated against him after he filed complaints by issuing the letter of warning, denying him sick leave pay, and changing his work schedule. The district court granted summary judgment in favor of USPS and we affirmed in a memorandum disposition. See Despanie v. Henderson, No. 00-16647, 32 Fed.Appx. 390, 2002 WL 464019 (9th Cir. Mar.20, 2002).
On this second appeal, Despanie contends that USPS discriminated and retaliated against him in violation of Title VII and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, by denying him a full Economic Value Added ("EVA") payment and a merit bonus for the 1998 fiscal year. Despanie also re-asserts the claims of discrimination and retaliation that we decided on his first appeal and further alleges that the identical acts at issue there violated the ADA. Finally, he contends that the district court erred when it rejected his request for additional time to conduct discovery under Federal Rule of Civil Procedure 56(f).
We hold that both Despanie's Title VII and ADA claims regarding the issuance of the letter of warning, the denial of sick leave pay, and the change in work schedule are barred by the doctrine of res judicata. See In re Imperial Corp. of America, 92 F.3d 1503, 1506 (9th Cir.1996) (holding that a claim is precluded by res judicata when there is an earlier decision that (1) involved the same claim as the present suit, (2) involved the same parties or their privies, and (3) resulted in a final judgment on the merits); see also id. (stating that res judicata is properly invoked when "substantially the same evidence is presented in two actions" and the two suits arise out of the same "transactional nucleus of facts").
With respect to Despanie's claims that USPS discriminated and retaliated against him with respect to the EVA and bonus payments, we reject those claims on the merits. Despanie was awarded a forty
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percent EVA payment even though he worked a total of forty hours over the course of the entire 1998 fiscal year, and he points to no evidence in the record that the denial of the additional EVA payment and the merit bonus was motivated by improper discriminatory animus or was in retaliation for his complaints.
Finally, we hold that the district court's denial of Despanie's request for a continuance under Federal Rule of Civil Procedure 56(f) was proper. Despanie had ample time to conduct discovery for this case.
AFFIRMED.