NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD ANGELUCCI, an individual, 

Plaintiff-Appellant, 

 v. 

ALEJANDRO N. MAYORKAS, Secretary, 

United States Department of Homeland 

Security, 

Defendant-Appellee.

No. 23-55246 

D.C. No. 

3:20-cv-00435-AJB-JLB 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Submitted March 28, 2024**

Pasadena, California

Before: GRABER, IKUTA, and FORREST, Circuit Judges.

Plaintiff Richard Angelucci is a former Transportation Security 

Administration (TSA) employee. He appeals from the summary judgment entered 

in favor of his employer, Defendant Alejandro Mayorkas, in his official capacity as 

* 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).

FILED

APR 1 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

the Secretary of Homeland Security, in this Title VII discriminatory discharge 

action. On de novo review, CFPB v. Aria, 54 F.4th 1168, 1171 (9th Cir. 2022), we 

affirm.

We assume, without deciding, that Plaintiff established a prima facie case of 

discrimination under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973), framework, thus shifting the burden to Defendant to provide a legitimate, 

nondiscriminatory reason for firing Plaintiff. See Opara v. Yellen, 57 F.4th 709, 

721–24 (9th Cir. 2023) (discussing shifting burden of proof). Defendant met that 

burden by pointing to Plaintiff’s lack of candor in knowingly submitting to a 

mortgage lender a letter, written on TSA letterhead, that contained false 

information about Plaintiff’s employment history at TSA. Defendant articulated 

several aggravating factors that led to Plaintiff’s firing, such as his failure to adhere 

to TSA policy and his past disciplinary record, which included a previous 

suspension for off-duty misconduct resulting from an arrest for felony vandalism—

unlawful conduct that reflected badly on TSA. The burden therefore shifted back 

to Plaintiff to show that Defendant’s reasons were pretextual. Id. at 723–24. 

Plaintiff’s proffered circumstantial evidence of pretext does not create a 

genuine issue of material fact. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 

1095 (9th Cir. 2005) (stating that circumstantial evidence of pretext must be 

“specific and substantial” to survive a motion for summary judgment (citations 
3 

omitted)). The two TSA employees who Plaintiff argues are comparators were not 

similarly situated to him because, unlike Plaintiff—whom Defendant previously 

had suspended, investigated, and disciplined for vandalizing a car—neither 

employee had received any prior disciplinary actions. See Vasquez v. County of 

Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (stating that individuals are 

similarly situated when they “display similar conduct”), as amended (Jan. 2, 2004). 

For the same reason, to the extent Plaintiff relied on McGinest v. GTE Service 

Corp. to establish discrimination, Plaintiff failed to carry his burden of proving that 

“a discriminatory reason more likely than not motivated” the employer. 360 F.3d 

1103, 1122 (9th Cir. 2004). 

We also reject Plaintiff’s claim that a factual dispute exists as to who wrote 

the letter that he submitted to the mortgage lender. Plaintiff previously stated, 

under oath, in affidavits and a deposition that he wrote the letter. He cannot now 

manufacture a factual dispute by contradicting those sworn statements and arguing 

on appeal that his supervisor was the author. See Cleveland v. Pol’y Mgmt. Sys. 

Corp., 526 U.S. 795, 806 (1999) (“[A] party cannot create a genuine issue of fact 

sufficient to survive summary judgment simply by contradicting his or her own 

previous sworn statement (by, say, filing a later affidavit that flatly contradicts that 

party’s earlier sworn deposition) . . . .”); Van Asdale v. Int’l Game Tech., 577 F.3d 

989, 998 (9th Cir. 2009) (same). In addition, the issue of whether Plaintiff or his 
4 

supervisor authored the letter is not a material fact that could affect the outcome of 

the case, because Defendant’s description of Plaintiff’s conduct leading to his 

firing did not opine or rely on whether Plaintiff authored the letter. See Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that 

might affect the outcome of the suit under the governing law will properly preclude 

the entry of summary judgment.”). Similarly, that the recommending official 

changed his mind about how to discipline Angelucci is not evidence of 

discrimination. Id. 

AFFIRMED.