FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIS W. JEFFERSON, No. 14-56189
Plaintiff - Appellant, D.C. No. 2:13-cv-04453-PSG-SS
v.
MEMORANDUM*
THE BOEING COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted June 9, 2016
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and EATON, Judge.**
Appellant Louis W. Jefferson (Jefferson) appeals a district court order
granting summary judgment in favor of Appellee The Boeing Company (Boeing).
Appellant contends the district court improperly excluded evidence that would
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
have raised genuine factual disputes as to his age and retaliatory discrimination
claims under the California Fair Employment and Housing Act (FEHA), Cal.
Gov’t Code § 12900 et seq., as well as his claims under California tort law for
intentional and negligent infliction of emotional distress. Appellant insists this
evidence demonstrates he was reclassified into an incorrect job category in 2009
because of his age, and this misclassification led to his layoff in 2011.
California courts have adopted the three-step burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate FEHA
claims. See Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012). Under
that framework, Jefferson must first establish a prima facie case of age
discrimination. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir.
2000). If he does so, the burden of production shifts to Boeing to rebut Jefferson’s
prima facie case by articulating a legitimate, non-discriminatory reason for its
challenged employment actions. Id. at 1123–24. If rebutted, the burden shifts
back to Jefferson to show that Boeing’s reasons were pretextual, and the true
reason for its actions was unlawful discrimination. Id. at 1124.
Appellant met his “minimal” burden of establishing a prima facie case of age
discrimination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
Boeing, in turn, rebutted Jefferson’s prima facie case by articulating legitimate,
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non-discriminatory reasons for the challenged employment actions. Boeing
offered evidence that the reclassification resulted from the reasoned deliberations
of its Human Resources Department and several Boeing managers, who were
indisputably uncertain as to Jefferson’s correct job classification, as demonstrated
by emails offered by Jefferson. As to his later termination, there is no dispute that
Jefferson’s layoff was part of a company-wide reduction-in-force (RIF), that the
RIF itself was conducted in an age-neutral manner, and that Jefferson was not
replaced once terminated as his position was eliminated entirely.
Appellant fails to demonstrate that Boeing’s proffered legitimate,
non-discriminatory reasons were “pretextual ‘either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of credence.’”
Chuang, 225 F.3d at 1124 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
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U.S. 248, 256 (1981)). Even accepting Jefferson’s evidence as true,1 it only shows
that he disagreed with his employer about his proper job classification, but does
not show Boeing’s reason for the reclassification was pretextual. See Guz v.
Bechtel Nat’l Inc., 8 P.3d 1089, 1115 (Cal. 2000) (“[An employer’s] true reasons
[for an employment action] need not necessarily have been wise or correct. While
the objective soundness of an employer’s proffered reasons supports their
credibility . . . , the ultimate issue is simply whether the employer acted with a
motive to discriminate illegally.” (citations omitted)).
1
We note that the district court did commit legal error in deeming
inadmissible Jefferson’s evidence about Arechiga’s and Czopek’s alleged
statements, both of which were plainly admissible as admissions of party agents
under Federal Rule of Evidence 801(d)(2). Similarly, Jefferson’s testimony that 90
percent of his job obligations were engineering-related, which was based on his
personal knowledge of his daily activities, was admissible. See Nigro v. Sears,
Roebuck & Co., 784 F.3d 495, 497–98 (9th Cir. 2015) (a plaintiff’s testimony may
be rejected as “self-serving” and “uncorroborated” when it states mere
“conclusions and not facts that would be admissible evidence”; but where evidence
is “based on personal knowledge, legally relevant, and internally consistent,” the
fact that the plaintiff’s testimony is self-serving or uncorroborated goes to its
weight, not its admissibility). Nevertheless, Czopek’s statement and Jefferson’s
testimony do not create a triable issue of fact; they merely affirm that Jefferson’s
job obligations did not fit well into any job classification, and that Jefferson and
Boeing disagreed about which classification best characterized Jefferson’s
“unique” tasks. That does not tend to show that Boeing’s proffered age-neutral
reasons were mere pretext. Evidence of Arechiga’s 2008 statement cannot alone
create a triable issue of fact on step three of the McDonnell Douglas framework,
because the significant time lapse between the statement and Jefferson’s
reclassification (almost one year) and termination (over three years) negates a
reasonable inference of causation.
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Jefferson’s argument that his misclassification, from a Systems Engineer to a
Government Property Specialist, put him at a higher risk for layoff because he was
evaluated against other Government Property Specialists, who performed different
work than Jefferson, also fails. The evidence shows the RIF was not limited to
Government Property Specialists, but also extended to Systems Engineers; 16
Government Property Specialists were laid off, while 366 Systems Engineers were
terminated. Even if Jefferson had not been reclassified, the RIF process would
have reached his previous job classification.2
Jefferson also fails to cast doubt on Boeing’s claim that his termination was
part of a company-wide, age-neutral RIF. Appellant offered statistical evidence
showing that Boeing hired many junior and mid-level employees for engineering
positions around the time of Jefferson’s termination. But Jefferson fails to offer
2
While age discrimination claims brought pursuant to the Age
Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, 81 Stat. 602
(1967) (codified at 29 U.S.C. § 621 et seq.), are analyzed to determine “whether
the employee would not have been discharged ‘but for’ his age,” Cassino v.
Reichhold Chems., Inc., 817 F.2d 1338, 1343–44 (9th Cir. 1987), this Court has
held that “[t]he FEHA’s express purpose of ‘provid[ing] effective remedies that
will . . . prevent and deter unlawful employment practices’ suggests that section
12940(a)’s prohibition on discrimination is not limited to instances where
discrimination is a ‘but for’ cause of the employment decision.” Harris v. City of
Santa Monica, 294 P.3d 49, 64 (Cal. 2013) (quoting Cal. Gov’t Code § 12920.5).
Nonetheless, it is notable that Jefferson’s claim also fails to meet the ADEA’s
stricter standard.
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any evidence that those employees were hired to replace Jefferson (formerly a
senior-level systems engineer) or that the new employees performed any of the
same tasks as the more senior-level engineers who were laid off. Without such
evidence, these statistics fail to demonstrate a “stark pattern of discrimination
unexplainable on grounds other than age.” Palmer v. United States, 794 F.2d 534,
539 (9th Cir. 1986) (internal quotation marks and citation omitted). Indeed, that
Boeing was hiring a large number of entry-level engineers does not create a
genuine factual dispute as to whether Boeing’s proffered reasons for its
employment actions were “pretext[s] for unlawful discrimination.” See Lawler v.
Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013).
As to Jefferson’s second claim of retaliatory discrimination, he made a
showing that he engaged in a protected activity by pointing to a comment he
allegedly made to his supervisor in 2009 after his reclassification, but failed to
show this comment was related to his termination two years later, particularly
given the temporal gap. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274
(2001) (“Action taken . . . 20 months later suggests, by itself, no causality at all.”);
Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (“While courts may
infer causation based on the proximity in time between the protected action and the
allegedly retaliatory employment decision, such an inference is not possible in this
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case because approximately nine months lapsed between the date of [the]
complaint and the . . . alleged adverse decisions.” (internal quotation marks and
citations omitted)).
Finally, as to Jefferson’s derivative tort claims, the California Workers’
Compensation scheme is the sole and exclusive remedy for employees against
employers for injuries arising during the course of employment, unless an
employer’s conduct violates a statute or fundamental public policy. See Miklosy v.
Regents of Univ. of Cal., 188 P.3d 629, 645–46 (Cal. 2008). Having failed to raise
a genuine dispute with respect to his FEHA claims, Jefferson’s derivative tort
claims are preempted by the California Workers’ Compensation Law. See Cal.
Lab. Code § 3602(a).
AFFIRMED.
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