Turney v. Hyundai Construction Equipment USA Inc. ( 2012 )

FILED
NOT FOR PUBLICATION JUN 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DENNIS L. TURNEY, a married man, No. 11-15300
Plaintiff - Appellant, D.C. No. 2:09-cv-00632-MEA
v.
MEMORANDUM *
HYUNDAI CONSTRUCTION
EQUIPMENT USA INCORPORATED;
HYUNDAI HEAVY INDUSTRIES
LIMITED; JOHN LIM, an individual,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Mark E. Aspey, Magistrate Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Plaintiff-Appellant Dennis L. Turney (“Turney”) appeals the district court’s
grant of summary judgment in favor of Defendants-Appellees on his claims of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
national origin discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., as amended, and age discrimination in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
We affirm.
Turney alleges he was terminated from his position at Hyundai Construction
Equipment USA, Inc. (“HCE”) because of his age and because he is a non-Korean
Caucasian American. HCE claims it terminated Turney for performance-related
problems, a “legitimate, nondiscriminatory reason” for the adverse employment
action. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916-17 (9th Cir. 1996).
Even though he is Caucasian, Turney belongs to a protected class for
purposes of his national origin discrimination claim because “Title VII applies to
any racial group, whether minority or majority.” Aragon v. Republic Silver State
Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002). Nevertheless, Turney’s national
origin discrimination claim fails because Turney has not produced sufficient
evidence to state a prima facie case. Turney was replaced in his position at HCE
by a man who, like him, was Caucasian American. Turney has identified no
admissible evidence of national origin discrimination in his appellate briefs. The
district court correctly granted summary judgment in favor of Defendants-
Appellees on Turney’s Title VII claim.
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Though Turney’s evidence of age discrimination is stronger than his
evidence of national origin discrimination, it is still insufficiently probative to
“raise a triable issue that [HCE’s] proffered reason [for terminating Turney] is
pretext for unlawful discrimination.” Earl v. Nielsen Media Research, Inc., 658
F.3d 1108, 1112 (9th Cir. 2011). Turney has not shown he was replaced by a
“substantially younger” employee. See O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 313 (1996). Furthermore, the comments allegedly made by
defendant John Lim are more properly characterized as stray remarks than direct
evidence of discrimination. See Nidds, 113 F.3d at 918-19 (“old timers” comment
insufficient to “create an inference of age discrimination”); Nesbit v. Pepsico, Inc.,
994 F.2d 703, 705 (9th Cir. 1993) (ambivalent comment not tied directly to
termination is “at best weak circumstantial evidence of discriminatory animus”);
Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438-39 (9th Cir. 1990). The district
court did not err in granting summary judgment in favor of Defendants-Appellees
on Turney’s ADEA claim.
AFFIRMED.
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