David Rey v. C&H Sugar Co. , 609 F. App'x 923 ( 2015 )

FILED
NOT FOR PUBLICATION APR 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID REY, No. 12-17813
Plaintiff - Appellant, D.C. No. 3:10-cv-01970-SI
v.
MEMORANDUM*
C&H SUGAR COMPANY, INC., a
Delaware corporation and AMERICAN
SUGAR REFINING, INC., a Delaware
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted April 13, 2015
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges and BENITEZ,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
David Rey appeals the district court’s grant of summary judgment in favor
of his employer, C&H Sugar Company, Inc. and its parent company American
Sugar Refining, Inc., on his claims of age discrimination and retaliation in
violation of the California Fair Employment and Housing Act (“FEHA”),
California Government Code § 12940 et seq. We have jurisdiction pursuant to 28
U.S.C. § 1291 and we affirm.
1. The district court did not err in determining that Rey failed to raise questions
of fact regarding whether C&H’s articulated reason for termination was pretext for
age discrimination. To show pretext, “there must be evidence supporting a rational
inference that intentional discrimination, on grounds prohibited by the statute, was
the true cause of the employer’s actions.” Guz v. Bechtel Nat’l Inc., 8 P.3d 1089,
1117 (Cal. 2000). “[S]ection 12940(a) does not purport to outlaw discriminatory
thoughts, beliefs, or stray remarks that are unconnected to employment
decisionmaking.” Harris v. City of Santa Monica, 294 P.3d 49, 65 (Cal. 2013).
Rey did not present any direct or circumstantial evidence that his termination was
causally connected to the one discriminatory comment. See id. at 66. The record
established that Rey was terminated for performance related issues, which
performance problems existed both before and after the discriminatory comment
was made. Although Rey excuses his performance issues, he did not produce
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evidence that age discrimination (and not his poor performance) was the true cause
of his termination. Thus, summary judgment was proper.
2. The district court did not err in determining that Rey failed to raise questions
of fact regarding whether C&H’s articulated reason for termination was pretext for
illegal retaliation. As described, the record established that Rey had performance
issues before and after he reported the age discrimination claim to human
resources. In particular, Rey had a poor performance review prior to reporting the
claim. Three days prior to his claim to human resources, Rey’s supervisors
discussed his poor performance with him and reassigned him to inventory for two
weeks (which Rey classified as a demotion). Although Rey points to evidence of
increased monitoring after he reported claim, “temporal proximity alone is not
sufficient to raise a triable issue as to pretext once the employer has offered
evidence of a legitimate, nondiscriminatory reason for the termination.” Arteaga v.
Brink’s, Inc., 77 Cal. Rptr. 3d 654, 675 (Ct. App. 2008). Absent temporal
proximity, Rey presents no justification for pretext. C&H raised performance
related issues with Rey prior to his reporting of the claim. See id. The record does
not evidence that employees supervising him were even aware of the claim. Rey
provides explanations for much of his poor performance; however, these
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explanations do not raise an issue of material fact to suggest that C&H’s proffered
reason for termination was pretextual. Thus, summary judgment was proper.
3. Because Rey failed to raise triable issues of fact with respect to his FEHA
claims, his wrongful termination must also fail.
AFFIRMED.
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