Tommy Boden v. Nutrien Ag Solutions, Inc.

FILED
NOT FOR PUBLICATION
DEC 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMY BODEN, AKA Shane Boden, No. 21-35100
Plaintiff-Appellant, D.C. No. 4:18-cv-00266-JMM
v.
MEMORANDUM*
NUTRIEN AG SOLUTIONS, INC., FKA
Crop Production Services, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
James Maxwell Moody, District Judge, Presiding
Argued and Submitted November 17, 2021
Pasadena, California
Before: RAWLINSON and LEE, Circuit Judges, and KENNELLY,** District
Judge.
Tommy Boden (Boden) appeals the district court’s grant of summary
judgment in favor of Nutrien AG Solutions, Inc. (Nutrien). Boden alleged that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
Nutrien terminated him from his position as an agricultural sales representative due
to his disability and age in violation of the Americans with Disabilities Act (ADA)
and the Age Discrimination in Employment Act (ADEA). Boden contends that the
district court erred in granting summary judgment on his ADA claim because he
raised a material factual dispute that he was disabled and was terminated on
account of his disability. Boden further asserts that the district court erred in
granting summary judgment in favor of Nutrien on his ADEA claim because he
presented direct evidence of discriminatory animus.
The district court properly granted summary judgment on Boden’s ADA
claim because Boden failed to raise a material factual dispute that he was disabled
or that Nutrien was aware of any disability when he was terminated. Boden’s
medical records indicated that Boden was cleared to work without restrictions, and
Boden acknowledged in his deposition that he was capable of working without
restrictions. See Garcia v. Salvation Army, 918 F.3d 997, 1010 (9th Cir. 2019)
(explaining that “[a] doctor’s release to work without restrictions supports a
finding that a person no longer suffers from a disability”) (citations and internal
quotation marks omitted). Additionally, Boden failed to raise a material factual
dispute that Nutrien was aware of Boden’s purported disability, or based Boden’s
termination on a perceived disability. See Lopez v. Pac. Maritime Ass’n, 657 F.3d
2762, 765 (9th Cir. 2011), as amended (recognizing that “[i]f the employer were
truly unaware that a disability existed, it would be impossible for [its employment]
decision to have been based, even in part, on the employee’s disability”) (citation
and alterations omitted).
However, the district court erred in granting summary judgment in favor of
Nutrien on Boden’s ADEA claim. We have held that “[d]irect evidence, in the
context of an ADEA claim, is defined as evidence of conduct or statements by
persons involved in the decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude sufficient to permit the fact finder to
infer that that attitude was more likely than not a motivating factor in the
employer’s decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802,
812 (9th Cir. 2004), as amended (citation, alteration, and internal quotation marks
omitted) (emphasis in the original).
Boden presented direct evidence of discriminatory animus based on the
depositions of two former customers. One customer related that, when he spoke to
the manager who terminated Boden,1 the manager conveyed that Nutrien had “a
1
The Nutrien manager who conversed with the customers made the
decision to terminate Boden. Due to direct evidence of discriminatory animus, we
are unpersuaded by Nutrien’s assertions that summary judgment was warranted on
Boden’s ADEA claim based on the same-actor inference. See Coghlan v. Am.
(continued...)
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new guy, he’s younger, he’s educated. And . . . they need[ed] someone new and
someone educated. And [Boden was] too old.” Another customer recounted that,
when he spoke to the manager about Boden’s termination, he responded that
Nutrien had found “somebody younger and eager.”
In light of this direct evidence of discriminatory animus, the district court
also erred in applying the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Enlow, 389 F.3d at 812(explaining that “[w]hen a plaintiff alleges disparate treatment based on direct
evidence in an ADEA claim, we do not apply the burden-shifting analysis set forth
in McDonnell Douglas”). Rather, we determine whether the plaintiff raised a
material factual dispute that his age was “a motivating factor” in his termination in
light of the direct evidence of discriminatory animus. Id. The direct evidence of
discriminatory animus toward Boden met this standard.2
1
(...continued)
Seafoods Co. LLC., 413 F.3d 1090, 1096 & n.10 (9th Cir. 2005) (recognizing in a
case lacking “any direct evidence of . . . discriminatory intent” that “when the
allegedly discriminatory actor is someone who has previously selected the plaintiff
for favorable treatment, that is very strong evidence that the actor holds no
discriminatory animus, and the plaintiff must present correspondingly stronger
evidence of bias in order to prevail”) (emphasis added).
2
Because Boden raised a material factual dispute precluding summary
judgment based on direct evidence, we need not and do not address Boden’s appeal
(continued...)
4
AFFIRMED in part and REVERSED in part.
2
(...continued)
of the district court’s grant of Nutrien’s motion to strike portions of the
declarations submitted by Boden and Isaac Walker.
5