NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH COOPER, 

Plaintiff-Appellant, 

 v. 

WINDOW ROCK UNIFIED SCHOOL 

DISTRICT, 

Defendant-Appellee.

No. 23-15527 

D.C. No. 3:20-cv-08346-DJH 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Submitted February 8, 2024**

Phoenix, Arizona

Before: MURGUIA, Chief Judge, and HAWKINS and JOHNSTONE, Circuit 

Judges.

Kenneth Cooper appeals from the district court’s grant of summary 

judgment in favor of Window Rock Unified School District (the “School District”) 

in his employment discrimination action. We have jurisdiction under 28 U.S.C. § 

* 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

FEB 13 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

1291. We review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). 

We affirm.

1. The district court did not err in granting summary judgment in favor 

of the School District on Plaintiff’s Title VII race discrimination claim. Summary 

judgment under Title VII is appropriate where no material issue of fact is raised. 

See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 685–86 (9th Cir. 2017).

Under the McDonnell Douglas framework1, Plaintiff can likely make out a prima 

facie case of discrimination, especially given that a plaintiff’s burden of proof is 

incredibly low at this first step. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 

F.3d 1115, 1124 (9th Cir. 2000). At the next step of the McDonnell Douglas 

framework, the School District has produced a legitimate, nondiscriminatory 

reason for its decision to not renew Plaintiff’s Employment Contract: Plaintiff’s 

violation of the Code of Conduct and insubordinate behavior. At the final step, the 

same-actor inference applies, so Plaintiff’s “burden is especially steep” as to

pretext. Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1096 (9th Cir. 2005).

Plaintiff attempts to show pretext by reiterating his argument that non-African 

American employees were not disciplined to the same extent as he was even 

1 Where a plaintiff uses circumstantial evidence of disparate treatment to support 

their claim of employment discrimination, such claims are evaluated under the 

burden-shifting framework outlined by the Supreme Court in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973).
3 

though they engaged in similar or worse conduct. But especially considering 

Plaintiff’s burden under the same-actor inference, Plaintiff has failed to offer 

evidence sufficient to overcome his heightened burden. Id. at 1099 (concluding 

that the plaintiff “cannot rebut the ‘strong inference’ of nondiscrimination that 

arises under the same-actor rule” where he did not present “evidence that would 

cast doubt on [the employer’s] legitimate explanation of the decision”). 

Accordingly, Plaintiff’s claim that the School District racially discriminated 

against him by not renewing his Employment Contract fails at the last step of the 

McDonnell Douglas framework.

2. Plaintiff’s breach of contract and retaliation claims are waived 

because they were not raised in the opening brief. United States v. Ullah, 976 F.2d 

509, 514 (9th Cir. 1992). Assuming Plaintiff’s hostile work environment claim is 

not also waived, summary judgment is proper. Parties generally cannot assert 

unpled theories for the first time at the summary judgment stage. Navajo Nation v. 

United States Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008). Since Plaintiff did 

not reference a hostile work environment in his Complaint and attempted to raise 

this claim for the first time at the summary judgment phase, it is rejected because it 

was not properly pled. Id. 

AFFIRMED.