                                                                           FILED
                            NOT FOR PUBLICATION                             APR 28 2010

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




                           FOR THE NINTH CIRCUIT

LAWRENCE J. MARINO AND MARY                      No. 09-55320
ANN MARINO LIVING TRUST,
                                                 D.C. No. 2:07-cv-03931-VBF-CW
              Plaintiff - Appellant,
  v.
                                                 MEMORANDUM *
AKAL SECURITY INC.,
              Defendant - Appellee.



                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                        Argued and Submitted April 5, 2010
                               Pasadena, California

Before: PREGERSON and BEEZER, Circuit Judges, and GRAHAM, Senior
District Judge.**

       Plaintiff-Appellants Lawrence J. Marino (“Marino”), now deceased, and

Mary Ann Marino Family Revocable Living Trust (collectively “Plaintiffs”) appeal

the district court’s grant of judgment as a matter of law in favor of Defendant-




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable James L. Graham, Senior United States District Judge
for the Southern District of Ohio, sitting by designation.
Appellee Akal Security, Inc. (“Akal”). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      We state the facts only as necessary to explain our decision. Through its

contract with the United States Marshal Service, Akal employed Lawrence Marino

as a Court Security Officer (“CSO”). Marino was also a Master Sergeant in the

United States Army. In 2005, the Army ordered Marino to serve six months of

active duty, an order with which Marino complied.

      The day Marino returned to work, several CSOs saw him drinking what

appeared to be a Coors Cutters, a brand of “near beer,” in the breakroom. Several

CSOs reported the incident to their supervisor, James Mosier. Akal reported the

allegations to the Marshal Service, which directed Akal to investigate.

      Akal investigated. Supervisor Mosier solicited witness statements. One

CSO reported that he saw Marino drinking in the breakroom from a “non-alcoholic

Coors bottle.” Another CSO stated that he saw Marino take a brown bottle from

the refrigerator and drink its contents, and that the bottle cap had the word “Coors”

on it. Additionally, Marino told Supervisor Mosier that he drank two “non-

alcoholic beers” in the breakroom.

      Based on its investigation, Akal concluded that Marino had violated a

number of Performance Standards by drinking two Coors Cutters in the


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breakroom. Akal decided that the appropriate discipline was a thirty-day

suspension and a final letter of warning, in part because Marino had previously

been warned that CSOs are not permitted to drink near beer at work. Akal reported

its findings and conclusions to the Marshal Service.

      The Marshal Service rejected Akal’s proposed discipline because it

concluded that “Marino has shown severe breach of security and lack of personal

[sic] conduct by drinking alcoholic beverages on duty.” Based on its own

investigation and its review of Akal’s investigation, the Marshal Service

“requested CSO Marino’s permanent removal from service . . . .” Akal’s contract

with the Marshal Service required Akal to permanently remove a CSO from duty at

the Marshal Service’s request. After the Marshal Service ordered Akal to

permanently remove Marino from service, Akal terminated Marino.

      Marino brought suit against Akal in federal district court alleging causes of

action for: (1) retaliation for military service in violation of the Uniformed

Services Employment and Reemployment Rights Act (USERRA); and (2)

retaliation for whistle-blowing in violation of Cal. Labor Code § 1102.5 and public

policy. At the close of Plaintiffs’ case, Akal moved for judgment as a matter of

law as to each cause of action under Federal Rule of Civil Procedure 52(c). The

district court granted Akal’s motion, concluding that, although the court was “not


                                           3
 unsympathetic to Mrs. Marino . . . . , [a]s a matter of law, plaintiff does not have a

 viable claim against the defendant.” We agree.

          In an appeal from judgment as a matter of law under Fed. R. Civ. P. 52(c),

 we review the district court’s findings of fact for clear error and its conclusions of

 law de novo. Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th

 Cir. 2001).

 1.       USERRA § 4316(c)

          USERRA § 4316(c) prohibits employers from terminating a veteran, except

 for cause, within one year after the veteran returns to work from military service if

 the veteran served more than 180 days; or within 180 days after the veteran returns

 to work if the veteran served between 30 and 180 days. 38 U.S.C. § 4316(c).

 Because Akal established that the Marshal Service’s order to permanently remove

 Marino from duty prevented Akal from continuing to employ Marino as a CSO, we

 affirm the district court’s grant of judgment as a matter of law as to Plaintiffs’

 USERRA § 4316(c) claim.1 See 20 CFR § 1002.248(b) (an employer may show

 cause by establishing that an independent, non-discriminatory reason caused an

 employee’s position to be eliminated).


      1
        We reject Plaintiffs’ contention that Akal’s report to the Marshal Service
misled the Marshal Service. Akal’s report’s factual conclusions are fairly supported by
the record, and its disciplinary conclusions are transparent.

                                            4
 2.       USERRA § 4311

          USERRA § 4311 prohibits employers from discriminating against an

 employee because of that employee’s military service. 38 U.S.C. § 4311.

 Plaintiffs’ § 4311 claim fails because Akal established that it would have

 terminated Marino even if Marino had not been a member of the military service

 because the Marshal Service ordered Akal to remove Marino from service as a

 CSO—an order with which Akal was contractually obligated to comply. See

 Leisek v. Brightwood Corp., 278 F.3d 895, 899-900 (9th Cir. 2001). Consequently,

 the district court did not err when it granted Akal’s motion for judgment as a

 matter of law with respect to Plaintiffs’ § 4311 claim.

 3.       California Labor Code § 1102.5

          Plaintiffs allege that Akal retaliated against Marino in violation of California

 Labor Code § 1102.5(b) because Marino made complaints about Akal to various

 government agencies.2 Section 1102.5(b) prohibits employers from retaliating

 against an employee for “disclosing information to a government or law

 enforcement agency, where the employee has reasonable cause to believe that the




      2
        Marino made complaints to various government officials that Akal had
criminal connections, was involved in criminal activity, and was committing billing
irregularities and contract fraud.

                                              5
information discloses a violation of state or federal statute, or a violation or

noncompliance with a state or federal rule or regulation.”

      With respect to this claim, Plaintiffs allege two distinct forms of adverse

employment action: (1) Akal’s denial of Marino’s request for his preferred

positions when he returned to work, and (2) Akal’s termination of Marino. Marino

did not suffer an adverse action when Akal denied his request for his preferred

positions when he returned to work. Bidding for CSO schedules was governed by

the Collective Bargaining Agreement (“CBA”) between the Court Security

Officers Union and Akal. The CBA provided that bidding for schedules was

governed by seniority and took place once a year; but the CBA did not provide for

bidding for specific positions. Although Marino did not get his first choice

schedule, that schedule was not open for bid. Additionally, although Marino did

not get his second choice position, Marino did not have a right to bid on positions,

only on schedules—and Marino did get his second choice schedule (the same

schedule he had before his military service). Therefore, the only adverse action

that could have served as a basis for Plaintiffs’ § 1102.5 claim was Marino’s

termination.

      Plaintiffs’ § 1102.5(b) claim fails because Akal established a legitimate,

non-discriminatory reason for terminating Marino and Plaintiffs did not show that


                                            6
Akal’s reason was pretextual. See Patten v. Grant Joint Union High Sch. Dist.,

134 Cal. App. 4th 1378, 1384 (Ct. App. 2005); Morgan v. Regents of Univ. of Cal.,

88 Cal. App. 4th 52, 68 (Ct. App. 2001). Akal established a legitimate, non-

discriminatory reason for terminating Marino: the Marshal Service ordered Akal to

permanently remove Marino from service as a CSO.

      Plaintiffs did not establish pretext. First, Plaintiffs did not directly establish

that a discriminatory reason more likely motivated Akal to terminate Marino. See

Morgan, 88 Cal. App. 4th at 68. At the end of its investigation, Akal only intended

to suspend Marino. Akal did not terminate Marino until after the Marshal Service

ordered Akal to permanently remove Marino from duty as a CSO. Second,

Plaintiffs did not indirectly establish pretext by showing that Akal’s proffered

reason is unworthy of credence: Akal could not continue to employ Marino as a

CSO after the Marshal Service ordered Akal to permanently remove Marino from

duty as a CSO. Id. Consequently, the district court did not err when it granted

Akal’s motion for judgment as a matter of law with respect to Marino’s California

Labor Code § 1102.5 Claim.

4.    Claim for Discrimination in Violation of Public Policy

      Plaintiffs argue that because they have shown discrimination under

California Labor Code, they have also stated a claim for discrimination in violation


                                           7
of public policy. See Rojo v. Kliger, 52 Cal. 3d 65, 74-75 (1990). This argument

fails because Plaintiffs did not show discrimination under California Labor Code.

Consequently, the district court did not err when it granted Akal’s motion for

judgment as a matter of law with respect to Marino’s common law discrimination

claim.

5.       Conclusion

         For all of the foregoing reasons, we AFFIRM the district court.




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