                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 06 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DON MCDANIELS,                                   No. 12-55047

              Plaintiff - Appellant,             D.C. No. 2:02-cv-00087-TJH-JC

  v.
                                                 MEMORANDUM *
MOBIL OIL CORPORATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                   Terry J. Hatter, Senior District Judge, Presiding

                              Submitted June 6, 2013 **
                              San Francisco, California

Before: PREGERSON, W. FLETCHER, and BERZON, Circuit Judges.

       In this state employment discrimination case, before us for the third time,

Plaintiff Don McDaniels appeals the district court’s order granting Defendant

Mobil Oil Corporation’s (“Mobil”) Rule 50 motion for judgment as a matter of law


        *
             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).
with respect to McDaniels’ claim of retaliatory discharge. See Fed. R. Civ. P. 50.

We review the district court’s order de novo, Summers v. Delta Air Lines, Inc., 508

F.3d 923, 926 (9th Cir. 2007), and may affirm on any ground supported by the

record, City Solutions, Inc. v. Clear Channel Commc’ns, Inc., 365 F.3d 835, 842

(9th Cir. 2004). We affirm.

      1. The district court erred in concluding that McDaniels failed to establish a

prima facie case of retaliation. Retaliatory discharge claims brought under

California common law are analyzed under the burden shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).1 See Yanowitz v.

L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); see also Loggins v. Kaiser

Permanente Int’l, 151 Cal. App. 4th 1102, 1108-09 (2007). To establish a prima

facie case of retaliation under that framework, McDaniels was required to establish

that (1) he engaged in a “protected activity”; (2) Mobil subjected him to an

“adverse employment action”; and (3) “a causal link existed between the protected

activity and the employer’s action.” Yanowitz, 36 Cal. 4th at 1042; see also Porter




      1
        McDaniels expressly renounces on appeal any argument that his case
involves mixed motives, i.e., that Mobil had both legitimate and illegitimate
reasons for terminating him and that the improper retaliatory motive was a
“substantial factor” in the termination decision. See Harris v. City of Santa
Monica, 56 Cal. 4th 203, 229 (2013).

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v. Cal. Dep’t of Corr., 419 F.3d 885, 894 (9th Cir. 2005); Harris v. City of Santa

Monica, 56 Cal. 4th 203, 214–15 (2013).

      McDaniels provided evidence sufficient to satisfy this “not onerous” initial

burden. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The

parties do not dispute that McDaniels satisfies the first two elements: he engaged in

protected activity by raising environmental safety complaints to his supervisors

and later was terminated. Rather, the district court held, and Mobil argues on

appeal, that McDaniels failed to show a causal link between his safety complaints

and his termination. We disagree.

      McDaniels provided evidence indicating that at least one of his supervisors,

Gary Brooks, was aware of McDaniels’s safety complaints and involved in the

relevant meetings at which McDaniels’s employment status was discussed.

McDaniels also supplied evidence that several other Mobil supervisors and

personnel were aware of his safety complaints. That evidence was “sufficient for a

reasonable trier of fact to infer that [Mobil] was aware that [McDaniels] had

engaged in protected activity.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323

F.3d 1185, 1197 (9th Cir. 2003); see also Morgan v. Regents of Univ. of Cal., 88

Cal. App. 4th 52, 69–70 (2000).




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      2. We nonetheless affirm. “Although intermediate evidentiary burdens shift

back and forth under [the McDonnell Douglas] framework, [t]he ultimate burden

of persuading the trier of fact that the defendant intentionally [retaliated] against

the plaintiff remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks omitted) (second

alteration in original). A plaintiff may satisfy this burden “‘by showing that the

employer’s proffered explanation is unworthy of credence,’” or pretextual. Id.

(quoting Burdine, 450 U.S. at 256); see also Horn v. Cushman & Wakefield W.,

Inc., 72 Cal. App. 4th 798, 807 (1999). Where, as here, a plaintiff relies on

circumstantial evidence to prove a retaliatory motive, the plaintiff must provide

“specific, substantial evidence of pretext.” Godwin v. Hunt Wesson, Inc., 150 F.3d

1217, 1221 (9th Cir. 1998) (internal quotation marks omitted).

      McDaniels failed to present any evidence that Mobil’s proffered

rationale—that McDaniels’s health restrictions entirely precluded his continued

employment at the refinery—was pretextual or otherwise unworthy of credence.

See Burdine, 450 U.S. at 256. In short, McDaniels failed to provide a “legally

sufficient evidentiary basis” from which a reasonable jury could have found in his

favor. Fed. R. Civ. P. 50(a)(1).




                                            4
      3. The district court did not err in excluding the testimony of three former

Mobil employees allegedly terminated for making safety complaints. McDaniels

offered the three witnesses—all of whom were terminated decades before

McDaniels, and only one of whom worked at the same refinery as McDaniels—for

purposes of determining a proper punitive damages amount. The district court did

not abuse its discretion in excluding these witnesses under Federal Rule of

Evidence 403 during the liability phase of the trial. Cf. Grant v. City of Long

Beach, 315 F.3d 1081, 1091 (9th Cir. 2002).

      4. Finally, the district court did not deny McDaniels “an opportunity to

present . . . available evidence bearing on” the veracity or legitimacy of Mobil’s

proffered rationale. Fed. R. Civ. P. 50, Advisory Comm. Note, 1991 Amendments.

McDaniels was fully apprised of his ultimate burden of proving retaliation. See

Summers, 508 F.3d at 927; see also Waters v. Young, 100 F.3d 1437, 1441 (9th

Cir. 1996).

      The question whether McDaniels’ health circumstances permitted him to do

any job—even one that Mobil was not legally obligated to provide as an

accommodation to McDaniels’ disability—was the central question after our

second remand. See McDaniels v. Mobil Oil Corp. (“McDaniels II”), No-09-

55088 at 4 (9th Cir. Nov. 22, 2010) (unpub.) (discussing McDaniels’ argument


                                          5
“that Mobil actually terminated him for his whistleblowing activity,” and that the

“medical restrictions” cited by Mobil did not “actually motivate[] the employer’s

decision to discharge him”). Moreover, the importance of that question was

“previewed to [McDaniels] by the district court” in several pretrial orders and

motions filed over the course of this litigation. Summers, 508 F.3d at 928.

McDaniels was therefore unquestionably “informed of the dispositive facts on

which [he was required to] introduce evidence.” Waters, 100 F.3d at 1441. As

McDaniels knew that he could not prevail without showing that he was employable

in some manner at Mobil, any notice of that deficiency in his case would have been

superfluous.

      AFFIRMED.




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