Veloz v. Pacific Gas & Electric Co.

FILED
NOT FOR PUBLICATION
JUL 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD VELOZ, an individual, No. 14-16047
Plaintiff - Appellant, D.C. No. 3:12-cv-06309-WHA
v.
MEMORANDUM*
PACIFIC GAS & ELECTRIC
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted June 13, 2016
San Francisco, California
Before: CLIFTON and IKUTA, Circuit Judges, and LAMBERTH,** Senior District
Judge.
After being fired from his position as a lineman at Pacific Gas & Electric
(“PG&E”), Plaintiff-Appellant Richard Veloz, a self-identified Hispanic, initiated
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
this action alleging, among other things, racial discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§
2000 et seq., the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, and the
Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code §§ 12940 et seq.,
as well as wrongful termination under California law. The district court dismissed
Veloz’s claims on summary judgment. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
I.
As a preliminary matter, we must first address PG&E’s pending motions to
strike excerpts of the record and those portions of Veloz’s Opening and Reply
Briefs that rely thereon. Specifically, PG&E moves to strike the documents located
at ER 40, 54, 57, 66, 70, 71, 75, 96, and 100. The district court struck those
documents located at ER 96 and 100 as improper attempts to enlarge the summary
judgment record. Veloz has not challenged that ruling on appeal. Veloz included
the remaining documents in his responses to PG&E’s motion for fees and costs.
Accordingly, there is no contention that any of these documents were before the
district court when it ruled on PG&E’s motion for summary judgment.
The record on appeal consists of those documents filed with the district
court, the transcripts of proceedings, if any, and a certified copy of the docket
2
entries prepared by the district clerk. Fed. R. App. P. 10(a)(1)-(3). Thus, papers not
filed with or admitted into evidence by the district court are not part of the record
on appeal. Kirshner v. Uniden Corp., 842 F.2d 1074, 1077 (9th Cir. 1988). Equally
excluded from the record on appeal are documents submitted to the district court
after it made the ruling challenged on appeal. Id.Though under certain circumstances this Court may permit litigants to
supplement the record before it, it is as axiomatic as it is elementary that parties
may not do so unilaterally. Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir.
2003). And as Veloz has done here, an attempt to do so is a “particularly serious
violation” of appellate procedure. Id. at 1025. Accordingly, we GRANT PG&E’s
motions to strike. We do not reach Veloz’s proffered justifications for
supplementation in light of his failure to follow basic appellate procedure. The
documents located at ER 40, 54, 57, 66, 70, 71, 75, 96, and 100, as well as those
portions of Veloz’s Opening and Reply Briefs that rely thereon are hereby
STRICKEN.
II.
The court below applied the familiar McDonnell Douglas v. Green, 411 U.S.
792 (1974), burden-shifting framework to Veloz’s racial discrimination claims.
Under that test, Veloz was required to make a prima facie showing that (1) he
3
belonged to a protected class; (2) that he performed his job satisfactorily; (3) that
he suffered an adverse employment action; and (4) that PG&E treated him less
favorably than other similarly situated employees. Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1028 (9th Cir. 2006).1 Veloz failed to offer any evidence
demonstrating similarly situated employees were treated more favorably. Absent
direct evidence of racial animus–of which Veloz adduced none–that failure is fatal
to his racial discrimination claims; their dismissal on summary judgment was
therefore proper.
The district court’s dismissal of Veloz’s retaliation claims was likewise
proper. Because the district court found Veloz put forth a prima facie case of
retaliation and PG&E provided a legitimate, nondiscriminatory reason for its
adverse employment action, it was incumbent on Veloz to put forth either direct
evidence of retaliation or substantial and specific circumstantial evidence
demonstrating pretext. Manatt v. Bank of Am., 339 F.3d 792, 801 (9th Cir. 2003).2
1
We apply the same test to employment discrimination claims brought
under the FEHA. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112
(9th Cir. 2011).
2
We also apply the McDonnell Douglas burden-shifting framework to
retaliation claims brought under Title VII and the FEHA. See Porter v. Cal. Dep’t
of Corr., 419 F.3d 885, 894 (9th Cir. 2004); Loggins v. Kaiser Permanente Int’l
(2007) 151 Cal. App. 4th 1102, 1108–09.
4
The only evidence Veloz presented on this point was the temporal proximity
between his reporting his manager to PG&E’s ethics hotline and later adverse
employment actions by PG&E. Such evidence was insufficient to carry Veloz’s
burden, however, because it failed to show that any of the decision makers who
took the adverse action potentially knew of his reports to the PG&E hotline at the
time the adverse employment action took place. See Cohen v. Fred Meyer, Inc.,
686 F.2d 793, 796–97 (9th Cir. 1982).
Lastly, it was proper for the district court to rule for PG&E on Veloz’s
wrongful termination claim because Veloz did not provide fair notice that his claim
was rooted in the public policies expressed in the federal Family Medical Family
Leave Act and the California Family Rights Act. Veloz never states in his
complaint that he was wrongfully terminated for taking sick leave or in retaliation
for his efforts to assert his statutory right to take sick leave. He alleges throughout
his complaint that his termination was a result of racial discrimination, never once
claiming he was terminated because he took sick leave or attempted to assert his
legal rights to do so. Therefore, his claim did not comply with Federal Rule of
Civil Procedure 8(a)(2) as it did not “give[] [PG&E] fair notice of the nature and
basis or grounds of the claim and a general indication of the type of litigation
involved.” Immigrant Assistance Project v. INS, 306 F.3d 842, 865 (9th Cir. 2002)
5
(citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1215 (2d ed. 1990)).
AFFIRMED.
6