                                                                            FILED
                           NOT FOR PUBLICATION                              APR 21 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID REY,                                       No. 12-17813

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01970-SI

  v.
                                                 MEMORANDUM*
C&H SUGAR COMPANY, INC., a
Delaware corporation and AMERICAN
SUGAR REFINING, INC., a Delaware
corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                       Argued and Submitted April 13, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and BENITEZ,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      David Rey appeals the district court’s grant of summary judgment in favor

of his employer, C&H Sugar Company, Inc. and its parent company American

Sugar Refining, Inc., on his claims of age discrimination and retaliation in

violation of the California Fair Employment and Housing Act (“FEHA”),

California Government Code § 12940 et seq. We have jurisdiction pursuant to 28

U.S.C. § 1291 and we affirm.

1.    The district court did not err in determining that Rey failed to raise questions

of fact regarding whether C&H’s articulated reason for termination was pretext for

age discrimination. To show pretext, “there must be evidence supporting a rational

inference that intentional discrimination, on grounds prohibited by the statute, was

the true cause of the employer’s actions.” Guz v. Bechtel Nat’l Inc., 8 P.3d 1089,

1117 (Cal. 2000). “[S]ection 12940(a) does not purport to outlaw discriminatory

thoughts, beliefs, or stray remarks that are unconnected to employment

decisionmaking.” Harris v. City of Santa Monica, 294 P.3d 49, 65 (Cal. 2013).

Rey did not present any direct or circumstantial evidence that his termination was

causally connected to the one discriminatory comment. See id. at 66. The record

established that Rey was terminated for performance related issues, which

performance problems existed both before and after the discriminatory comment

was made. Although Rey excuses his performance issues, he did not produce


                                          2
evidence that age discrimination (and not his poor performance) was the true cause

of his termination. Thus, summary judgment was proper.

2.    The district court did not err in determining that Rey failed to raise questions

of fact regarding whether C&H’s articulated reason for termination was pretext for

illegal retaliation. As described, the record established that Rey had performance

issues before and after he reported the age discrimination claim to human

resources. In particular, Rey had a poor performance review prior to reporting the

claim. Three days prior to his claim to human resources, Rey’s supervisors

discussed his poor performance with him and reassigned him to inventory for two

weeks (which Rey classified as a demotion). Although Rey points to evidence of

increased monitoring after he reported claim, “temporal proximity alone is not

sufficient to raise a triable issue as to pretext once the employer has offered

evidence of a legitimate, nondiscriminatory reason for the termination.” Arteaga v.

Brink’s, Inc., 77 Cal. Rptr. 3d 654, 675 (Ct. App. 2008). Absent temporal

proximity, Rey presents no justification for pretext. C&H raised performance

related issues with Rey prior to his reporting of the claim. See id. The record does

not evidence that employees supervising him were even aware of the claim. Rey

provides explanations for much of his poor performance; however, these




                                           3
explanations do not raise an issue of material fact to suggest that C&H’s proffered

reason for termination was pretextual. Thus, summary judgment was proper.

3.    Because Rey failed to raise triable issues of fact with respect to his FEHA

claims, his wrongful termination must also fail.

      AFFIRMED.




                                          4
