Mario Carlos v. Old Dominion Freight Line

FILED
NOT FOR PUBLICATION
MAR 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO CARLOS, No. 16-55893
Plaintiff-Appellant, D.C. No.
2:15-cv-06127-MWF-MRW
v.
OLD DOMINION FREIGHT LINE, INC., MEMORANDUM*
a Virginia corporation,
Defendant-Appellee,
and
DOES, 1 through 250, inclusive,
Defendant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 12, 2018
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District
Judge.
Mario Carlos sued his former employer, Old Dominion Freight Line, Inc.
(Old Dominion), for age discrimination and related wrongs stemming from his
firing in 2014. The district court granted summary judgment to Old Dominion on
all four claims. We affirm.
1. Age discrimination claims under California’s Fair Employment and
Housing Act (FEHA) are analyzed under the McDonnell Douglas burden-shifting
framework. See Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (Cal. 2000). As an
element of his prima facie case—the first step of the framework—Carlos had to
show he was “either replaced by substantially younger employees with equal or
inferior qualifications or discharged under circumstances otherwise giving rise to
an inference of discrimination.” Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139,
1146 (9th Cir. 2017) (internal quotation marks omitted). He did not so
demonstrate.
Old Dominion submitted a declaration showing that (1) the driver who took
over Carlos’s route was two years younger than Carlos and (2) the next driver Old
Dominion hired was four years older than him. Regardless of which of those two
**
The Honorable John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.
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drivers “replaced” Carlos, that driver was not “substantially” younger than Carlos.
See France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015) (holding that “an age
difference of less than ten years will be presumptively insubstantial” for making
out a prima facie case of age discrimination).
The only evidence Carlos put forward to dispute Old Dominion’s declaration
was his personal observation that around the time he was fired, Old Dominion
hired some younger drivers in their 30s. Even assuming that Carlos’s subjective
impression were accurate—and Old Dominion’s demographic evidence suggests it
was not—it does not contradict Old Dominion’s evidence that Carlos was not
“replaced by [a] substantially younger employee[].” Merrick, 867 F.3d at 1146.
Because Carlos failed to create a genuine issue of material fact as to an
element of his prima facie case of age discrimination, summary judgment was
proper.1 Breitman v. May Co. California, 37 F.3d 562, 565 (9th Cir. 1994).
2. The district court properly granted summary judgment to Old Dominion
as to Carlos’s claim of retaliation under FEHA. FEHA forbids employers from
firing an employee “because the person has opposed any practices forbidden under
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As Carlos did not show that his termination occurred during a reduction in
workforce, he may not—nor would he be able to—establish a prima facie case by
demonstrating he was “discharged under circumstances otherwise giving rise to an
inference of discrimination.” Merrick, 867 F.3d at 1146; Diaz v. Eagle Produce
Ltd. P’ship, 521 F.3d 1201, 1207 n.2 (9th Cir. 2008).
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[FEHA].” Cal. Gov’t Code § 12940(h). To establish a prima facie case of
retaliation, a plaintiff must introduce evidence showing that he engaged in
protected activity by opposing a practice forbidden under FEHA. Yanowitz v.
L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (Cal. 2005).
Carlos failed to create a genuine issue of material fact regarding whether he
engaged in protected activity. The record evidence, and Carlos’s own deposition
testimony, establish that he did not raise the issue of age discrimination until he
emailed the chief executive officer (CEO) of Old Dominion two weeks after he
was fired.
Carlos’s earlier communications and complaints did not put Old Dominion
on notice of his opposition to any forbidden practices. His 2013 letter to the CEO,
sent while he was still employed, alluded to mistreatment he and other drivers
allegedly suffered at the hands of Old Dominion management. The letter accused
Carlos’s managers of attempting to force Carlos to resign for driving outside of his
route—which Carlos denied—and stated that Carlos believed other drivers were
fired in the past for complaining about management. But nothing Carlos wrote in
the letter complained about age discrimination or any other “practice[] forbidden”
under FEHA. Cal. Gov’t Code § 12940(h). A plaintiff fails to make out a prima
facie case of retaliation “where there is no evidence the employer knew that the
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employee’s opposition was based upon a reasonable belief that the employer was
engaging in discrimination.” Yanowitz, 36 Cal. 4th at 1046.
3. Carlos’s common-law tort claim for wrongful discharge in violation of
public policy was predicated on his unmeritorious claims of age discrimination and
retaliation. “Under California law, if an employer did not violate FEHA, the
employee’s claim for wrongful termination in violation of public policy necessarily
fails.” Featherstone v. S. Cal. Permanente Med. Grp., 10 Cal. App. 5th 1150, 1169
(Cal. Ct. App. 2017) (citing Esberg v. Union Oil Co., 28 Cal. 4th 262, 272–73 (Cal.
2002)). Accordingly, the district court properly dismissed Carlos’s wrongful
termination claim.
4. In California, the exclusive remedy for disability arising “in the normal
course of the employer-employee relationship” is workers’ compensation. See
Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 902 (Cal. 2008); Cal. Lab.
Code § 3602(a). Where a tort claim is alleged, a plaintiff alleging disability
stemming from incidents “such as demotions, promotions, criticism of work
practices, and frictions in negotiations as to grievances, . . . may not avoid the
exclusive remedy provisions of the Labor Code,” even if the employer’s actions
were “manifestly unfair, outrageous, harassment, or intended to cause emotional
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disturbance resulting in disability.” Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d
148, 160 (1987).
Carlos pleaded a claim of intentional infliction of emotional distress (IIED)
based on his allegedly discriminatory termination and his managers’ criticism and
unfair treatment of him. Because those employment actions are “a normal part of
the employment relationship,” and the workers’ compensation bargain
encompasses disability arising from such actions, id., Carlos’s IIED claim was
barred.
The judgment of the district court is AFFIRMED.
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