FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PERNELL EVANS, No. 10-17169
Plaintiff - Appellant, D.C. No. 3:04-cv-00098-SI
v.
MEMORANDUM *
FEDERAL EXPRESS CORPORATION, a
Delaware corporation, DBA Fedex
Express,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted January 11, 2012 **
San Francisco, California
Before: NOONAN and M. SMITH, Circuit Judges, and RAKOFF, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for Southern New York, sitting by designation.
Pernell Evans, an Operations Manager at FedEx’s San Leandro facility, filed
suit alleging race discrimination and retaliation under Title VII, 42 U.S.C. § 1981,
and the California Fair Employment and Housing Act, Cal. Gov’t Code §§ 12940,
et seq. After a jury trial, the district court granted FedEx’s renewed motion for
judgment as a matter of law, and Evans timely appealed. Because the parties are
familiar with the factual and procedural history of this case, we repeat only those
facts necessary to resolve the issues raised on appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review de novo the district court’s decision to
grant a motion for judgment as a matter of law, EEOC v. Pape Lift, Inc., 115 F.3d
676, 680 (9th Cir. 1997), and we affirm because we conclude that “the evidence
permits only one reasonable conclusion, and that conclusion is contrary to the
jury’s verdict.” Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006).
As to the retaliation claim, Evans alleges that he was subject to four adverse
actions. The two corrective action notices were not adverse employment actions.
These notices did not materially alter the terms and conditions of Evans’s
employment, and they were not reasonably likely to deter Evans or other
employees from engaging in protected activity. See Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006). Assuming arguendo that the other two
actions – the Survey Feedback Action Memo and the shift change – were adverse
2
actions, Evans failed to show a causal link between those adverse actions and his
protected activities. In particular, Evans failed to show that similarly situated
individuals were treated differently from him. See Brooks v. City of San Mateo,
229 F.3d 917, 929 (9th Cir. 2000). The district court correctly concluded that
FedEx was entitled to judgment as a matter of law on this claim.
The district court also correctly granted judgment as a matter of law on
Evans’s disparate treatment claim. Evans seeks to show disparate treatment by
pointing to the more favorable treatment of similarly situated individuals outside of
his protected class. Even if Evans had asserted this claim with respect to all four
allegedly adverse actions,1 and even if all four actions had been materially adverse,
Evans failed to show that similarly situated individuals outside of his protected
class were treated more favorably with respect to any of the four actions.
AFFIRMED.
1
In his briefs, Evans only relies on the June 2002 corrective action notice and the
SFA quarterly reports when discussing his disparate treatment claim.
3