NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARRIS L. WINNS, 

Plaintiff-Appellant, 

 v. 

EXELA ENTERPRISE SOLUTIONS, INC., 

Defendant-Appellee.

No. 22-16342 

D.C. No. 4:20-cv-06762-YGR 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted August 2, 2023**

San Francisco, California

Before: O’SCANNLAIN, SILVERMAN, and JOHNSTONE, Circuit Judges.

Harris L. Winns appeals pro se the district court’s grant of summary 

judgment in favor of his former employer, Exela Enterprise Solutions, Inc., on his 

claims under the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1); the Age 

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; 

* 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

AUG 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

the Worker Adjustment and Retraining Notification (“WARN”) Act, 29 U.S.C. 

§ 2101 et seq.; 42 U.S.C. §§ 1981 and 1985(3); Title VII of the Civil Rights Act of 

1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; and California law. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant 

of summary judgment, and may affirm on any grounds supported by the record.

Arcona, Inc. v. Farmacy Beauty, LLC, 976 F.3d 1074, 1077 (9th Cir. 2020). We 

review for abuse of discretion a district court’s refusal to appoint counsel, Palmer 

v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), and its modifications to a pretrial 

scheduling order, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th 

Cir. 1992). We affirm. 

The district court properly granted summary judgment on Winns’s race and 

age-based discrimination and harassment claims under Title VII, the ADEA, and

California’s Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code 

§ 12940 et seq., because Winns did not raise these issues in his Equal Employment 

Opportunity Commission charge and therefore failed to exhaust administrative 

remedies. See 29 U.S.C. §§ 626(c)–(d), 633(b) (ADEA exhaustion requirement);

42 U.S.C. § 2000e-5 (Title VII exhaustion requirement); Cal. Gov’t Code 

§ 12965(c) (FEHA exhaustion requirement).

The district court correctly granted summary judgment on Winns’s 

defamation claim because Winns failed to raise a genuine dispute of material fact
3 

as to whether Exela published any false statement. See Taus v. Loftus, 151 P.3d 

1185, 1209 (Cal. 2007) (setting forth the elements of a defamation claim under 

California law, including the publication of a false statement).

The district court properly granted summary judgment on Winns’s claim for 

conspiracy under 42 U.S.C. § 1985(3) because he failed to raise a genuine dispute

of material fact as to the existence of a conspiracy to investigate him. See Sever v. 

Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (setting forth the elements 

of a claim under § 1985(3), including a conspiracy for the purpose of depriving a 

person of equal protection of the laws).

The district court properly granted summary judgment on Winns’s claim for 

retaliation in violation of Title VII and California Labor Code § 1102.5 because he 

failed to raise a genuine dispute of material fact as to any connection between an 

adverse employment action and his protected activities. See Villiarimo v. Aloha 

Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002) (explaining that a plaintiff 

can establish a prima facie case of retaliation under Title VII “by showing that:

1) he engaged in a protected activity; 2) he suffered an adverse employment 

decision; and 3) there was a causal link between the protected activity and the 

adverse employment decision”); Lawson v. PPG Architectural Finishes, Inc., 503 

P.3d 659, 667 (Cal. 2022) (explaining that California law “places the burden on the 

plaintiff [in an action under § 1102.5] to establish . . . that retaliation for an 
4 

employee’s protected activities was a contributing factor in a contested 

employment action”).

The district court correctly granted summary judgment on Winns’s claim for 

violations of the California and federal Equal Pay Acts because he failed to raise a 

genuine dispute of material fact as to whether “employees of the opposite sex were 

paid different wages for equal work.” Freyd v. Univ. of Or., 990 F.3d 1211, 1219–

20 (9th Cir. 2021) (citation and internal quotation marks omitted) (explaining

requirements for a prima facie case under the Equal Pay Act); see Allen v. Staples, 

Inc., 299 Cal. Rptr. 3d 779, 783 (Cal. Ct. App. 2022) (explaining that a prima facie 

case under California Labor Code § 1197.5(a) includes a showing of “different 

wages to employees doing substantially similar work under substantially similar 

conditions” (quoting Hall v. Cnty. of Los Angeles, 55 Cal. Rptr. 3d 732, 736 (Cal. 

Ct. App. 2007))).

The district court correctly granted summary judgment on Winns’s claim of 

discrimination under 42 U.S.C. § 1981. There was no genuine issue of material fact 

as to whether Winns’s race was a “but-for” cause of any adverse employment 

actions. See Comcast Corp. v. Nat’l Ass’n Afr. Am.-Owned Media, 140 S. Ct. 1009, 

1014 (2020) (holding that a plaintiff bringing a § 1981 claim “bears the burden of 

showing that race was a but-for cause of its injury”).
5 

The district court properly granted summary judgment on Winns’s claims 

for wrongful termination in violation of public policy, failure to prevent a hostile 

work environment and retaliation, and negligent supervision. There was no 

genuine issue of material fact as to the underlying discrimination, harassment, and 

retaliation on which the claims rested. See DeHorney v. Bank of Am. Nat’l Trust & 

Sav. Ass’n, 879 F.2d 459, 465 (9th Cir. 1989) (explaining that where a claim for 

wrongful termination in violation of public policy is founded on discrimination, the 

plaintiff’s “failure to make a prima facie case of . . . discrimination disposes of this 

claim as well”); Trujillo v. N. Cnty. Transit Dist., 73 Cal. Rptr. 2d 596, 601–02

(Cal. Ct. App. 1998) (affirming judgment for defendant on a claim of failure to 

prevent a hostile work environment where the record lacked support for the 

underlying allegations of discrimination and harassment).

The district court correctly granted summary judgment on Winns’s 

purported WARN Act claim, premised on Exela’s failure to transfer him, because 

the WARN Act contains no such transfer requirement. See 29 U.S.C. §§ 2101–

2109.

The district court did not abuse its discretion in denying Winns’s request for 

appointment of counsel because he failed to demonstrate “exceptional 

circumstances” for the appointment of counsel under 28 U.S.C. § 1915(e)(1). See 

Palmer, 560 F.3d at 970.
6 

The district court did not abuse its discretion in granting Exela additional 

time to conduct discovery because Exela showed good cause. Fed. R. Civ. 

P. 16(b)(4). Further, the district court’s order vacating the trial date and related 

deadlines pending its decision on the motion for summary judgment did not 

prejudice Winns or affect his ability to conduct discovery and submit evidence in 

opposition to Exela’s motion for summary judgment.

The record does not support Winns’s contentions of judicial bias. See Liteky 

v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never 

constitute a valid basis for a bias or partiality motion.”). 

Winns’s contention that the district court denied him his right to a jury trial 

lacks merit. See In re Slatkin, 525 F.3d 805, 811 (9th Cir. 2008) (“[A] summary 

judgment proceeding does not deprive the losing party of its Seventh Amendment 

right to a jury trial.”). 

Winns’s contention that the district court failed to give him required notice 

of summary judgment lacks merit. See Jacobsen v. Filler, 790 F.2d 1362, 1364 

(9th Cir. 1986) (rejecting required notice of summary judgment for pro se litigants 

in an ordinary civil case); cf. Rand v. Rowland, 154 F.3d 952, 960–61 (9th Cir. 

1998) (en banc) (explaining notice requirements for pro se prisoners). 
7 

Winn’s request to transmit physical and documentary exhibits, filed on 

November 22, 2022 (Dkt. No. 5), is denied as unnecessary. The items in the 

motion are available on the electronic district court docket or have been 

transmitted upon this Court’s request.

AFFIRMED.