FILED
NOT FOR PUBLICATION
AUG 15 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL N. OKAFOR, No. 18-55238
Plaintiff-Appellant, D.C. No.
8:15-cv-01626-CJC-JCG
v.
STATE OF CALIFORNIA MEMORANDUM*
DEPARTMENT OF CONSERVATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted August 12, 2019
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and WATSON,** District
Judge.
Plaintiff Michael Okafor appeals the summary judgment entered in favor of
Defendant, the California Department of Conservation, on his employment
discrimination and retaliation claims. Reviewing de novo, and viewing the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Watson, United States District Judge for the
Southern District of Ohio, sitting by designation.
evidence in the light most favorable to Plaintiff, Albino v. Baca, 747 F.3d 1162,
1168 (9th Cir. 2014) (en banc), we affirm.
1. The district court did not err by considering declarations that Defendant
provided to supplement the deposition testimony of its Federal Rule of Civil
Procedure 30(b)(6) designee. Plaintiff focused on one statement from that
deposition, taken out of context, to argue that the declarations contradicted
Defendant’s purported admission that it had no criteria for selecting employees to
participate in the training from which Plaintiff was excluded. But, considering the
deposition as a whole, the declarations merely clarified the designee’s testimony
about the various factors that might affect which employees attended training.
Although an entity defendant may not defeat a motion for summary judgment by
submitting an affidavit that conflicts with its Rule 30(b)(6) deposition, that general
rule "applies only where the purportedly conflicting evidence truly, and without
good reason or explanation, is in conflict, i.e., where it cannot be deemed as
clarifying or simply providing full context for the Rule 30(b)(6) deposition."
Snapp v. United Transp. Union, 889 F.3d 1088, 1103 (9th Cir. 2018), cert. denied,
139 S. Ct. 817 (2019).
2. The district court correctly granted summary judgment to Defendant on
Plaintiff’s discrimination and retaliation claims under Title VII of the Civil Rights
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Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and the California Fair Employment
and Housing Act ("FEHA"), Cal. Gov’t Code §§ 12900–12996. Even assuming
that Plaintiff made out a prima facie case, his claims fail because he offered no
evidence that created a genuine issue of material fact as to whether Defendant’s
legitimate, nondiscriminatory reasons for its actions were pretextual. Mayes v.
WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017); see Guz v. Bechtel
Nat’l, Inc., 8 P.3d 1089, 1113–14 (Cal. 2000) (recognizing that the burden-shifting
framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies
to discrimination claims under FEHA).
We are unpersuaded by Plaintiff’s contention at oral argument that he had no
opportunity to respond to the supplemental declarations. The additional fact
witnesses who provided declarations were disclosed during the Rule 30(b)(6)
deposition, but Plaintiff did not depose those witnesses, obtain any declarations
except his own, or seek additional time to conduct further discovery. Whatever the
reason for Plaintiff’s failure, he simply did not present any evidence of pretext.
3. Likewise, the district court correctly granted summary judgment to
Defendant on Plaintiff’s FEHA claim for "failure to prevent discrimination." An
employer cannot face liability for failing to prevent discrimination when no
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actionable discrimination occurred. Featherstone v. S. Cal. Permanente Med. Grp.,
217 Cal. Rptr. 3d 258, 272–73 (Ct. App. 2017).
AFFIRMED.
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