                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NOAH LEON,                                       No.   15-55591

              Plaintiff-Appellant,               D.C. No.
                                                 5:12-cv-00510-SVW-SP
 v.

RICARDO SALDANA; UNITED                          MEMORANDUM*
PARCEL SERVICE, INC.; SAMANTHA
PIMENTEL,

              Defendants-Appellees,

 and

ANA ESTRADA,

              Defendant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                            Submitted January 9, 2017**
                               Pasadena, California


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER,*** Senior
District Judge.

      Noah Leon appeals the district court’s grant of summary judgment for

United Parcel Service, Inc. (UPS) in his employment action alleging age

discrimination in violation of the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 621 et. seq., and California’s Fair Employment and Housing Act

(FEHA), Cal. Gov. Code § 12940 et. seq. Leon also appeals the district court’s

summary adjudication of his claim for discrimination based on union membership.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review a district court’s order granting summary judgment de novo.

Johnson v. Buckley, 356 F.3d 1067, 1071 (9th Cir. 2004). Here, the district court

properly found that Leon failed to establish a prima facie case of age

discrimination under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Leon has not presented sufficient

evidence to show that he was “either replaced by [a] substantially younger

employee[] with equal or inferior qualifications or discharged under circumstances

otherwise ‘giving rise to an inference of discrimination.’” Schechner v. KPIX-TV,

686 F.3d 1018, 1023 (9th Cir. 2012) (quoting Diaz v. Eagle Produce Ltd., 521 F.3d


      ***
             The Honorable David A. Faber, United States Senior District Judge
for the Southern District of West Virginia, sitting by designation.
                                          2
1201, 1207 (9th Cir. 2008)). Leon was forty-one at the time of his termination and

“believe[s his replacement] is under thirty but under forty for certain, with lesser

seniority.” Leon argues his statement constitutes lay witness testimony as to the

age of his replacement, but this argument fails because Leon’s testimony is not

“based on [his own] perception.” Fed. R. Evid. 701(a). Rather, Leon’s testimony

is based on inadmissable hearsay—i.e., a coworker told Leon that his replacement

is younger than him.1

      The district court also correctly found it lacked jurisdiction over Leon’s

claim for discrimination based on union membership because this claim constitutes

an unfair labor practice in violation of 29 U.S.C. § 158(a)(3), and “the National

Labor Relations Board . . . has exclusive jurisdiction to prevent and remedy unfair

labor practices by employers and unions.” Radcliffe v. Rainbow Constr. Co., 254

F.3d 772, 780 (9th Cir. 2001) (quoting Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103, 108 (1989)); see also Buscemi v. McDonnell Douglas

Corp., 736 F.2d 1348, 1350 (9th Cir. 1984) (“Violations of an employee’s right to

engage in concerted activities are within the exclusive jurisdiction of the NLRB.”).



      1
         Although Leon claims he “knew most people in the Ontario hub,” he does
not specifically allege that his knowledge as to Mike’s age arose from personal
interaction. When asked how he knew of his replacement’s age, Leon answers that
“Ofa Unga told [him].”
                                           3
Appellant shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).

AFFIRMED.




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