                                                                           FILED
                                                                           AUG 10 2016
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT


TERRY DOUBT,                                     No. 14-16530

              Plaintiff - Appellant,             D.C. No. 4:09-cv-05917-SBA

 v.
                                                 MEMORANDUM*
NCR CORPORATION,

              Defendant - Appellee.



                  Appeal from the United States District Court
                     for the Northern District of California
               Saundra Brown Armstrong, District Judge, Presiding

                        Argued and Submitted July 8, 2016
                            San Francisco, California

Before: BERZON and N.R. SMITH, Circuit Judges and CHRISTENSEN,** Chief
District Judge.

      Plaintiff Terry Doubt appeals from the district court’s grant of summary

judgment to Defendant NCR Corporation. We have jurisdiction pursuant to 28

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
U.S.C. § 1291, and we affirm. As the parties are familiar with the facts, we do not

recount them here.

1.    The district court did not err in granting summary judgment to NCR on

Doubt’s claim for age discrimination on the basis of disparate treatment. Doubt’s

disparate treatment claim fails because he failed to produce any evidence of

intentional discrimination on the basis of age. Guz v. Bechtel Nat’l Inc., 8 P.3d

1089, 1113 n.20 (Cal. 2000).

2.    Doubt failed to meet his burden to defeat summary judgment for NCR on his

claim for age discrimination on the basis of disparate impact. Pursuant to the

California Fair Employment and Housing Act (“FEHA”), courts are instructed to

“interpret the state’s statutes prohibiting age discrimination in employment broadly

and vigorously . . . , and with the goal of . . . protecting older workers as a group . .

. .” Cal. Gov’t Code § 12941. Notably, California makes clear that “the use of

salary as the basis for differentiating between employees when terminating

employment may be found to constitute age discrimination if use of that criterion

adversely impacts older workers as a group[.]” Id.

      Doubt argues that he was terminated because NCR no longer wanted to pay

his salary. However, he did not offer any statistical evidence raising an inference

that NCR’s cost-cutting employment practices caused adverse employment


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outcomes for workers over forty. See Life Techs. Corp. v. Super. Ct., 130 Cal.

Rptr. 3d 80, 87–88 (Cal. Ct. App. 2011) (citations omitted). To support his claim,

Doubt states that he was terminated but that four younger workers who performed

similarly were not. These four younger workers were not similarly situated to

Doubt, and they seem to have been hand-selected from a much larger pool of

workers for no reason except to support Doubt’s argument. Doubt also asserts that

all of the employees in his position who were terminated during a ten-month period

were over the age of forty, but he offers no explanation for analyzing only that

particular ten-month time period. Additionally, his analysis does not consider the

workers over the age of forty subsequently hired by NCR. Doubt’s gerrymandered

data sets do not adequately support his disparate impact claim.

3.    The district court appropriately granted summary judgment to NCR on

Doubt’s claim for retaliatory discharge. Doubt argues that “he engaged in a

protected activity” either by working overtime or by complaining about his

working conditions. Flait v. N. Am. Watch Corp., 4 Cal. Rptr. 2d 522, 528 (Cal.

Ct. App. 1992). However, he produced no evidence of the necessary “causal link”

between either activity and his termination, and his claim fails. Id.

4.    Nor did the district court err in granting summary judgment to NCR on

Doubt’s claim for breach of implied contract. Doubt claims that NCR could


                                          -3-
terminate him only for good cause. Under California law, in the absence of an

express agreement, employment is presumed to be at-will. Guz, 8 P.3d at 1100;

Cal. Lab. Code § 2922. Doubt offered no evidence that NCR terminated

employees exclusively for cause, and he failed to rebut the presumption of at-will

employment.

5.    Finally, Doubt failed to meet his burden to defeat summary judgment on his

claim for breach of the implied covenant of good faith and fair dealing. Because

Doubt has no claim for breach of contract, his claim necessarily fails. See Foley v.

Interactive Data Corp., 765 P.2d 373, 400 n.39 (Cal. 1988). The district court did

not err in finding that NCR was entitled to summary judgment on all claims.

6.    Doubt’s appeal from the district court’s denial of discovery sanctions is

without merit. The district court did not abuse its discretion in denying both entry

of judgment (which is extreme) and remand to the state court (which is legally

unsupportable) when NCR’s failure to comply with the requirements of discovery

was at least partially attributable to Doubt’s overreaching.

7.    Because we affirm the grant of summary judgment, we do not consider

Doubt’s argument for reassignment on remand.

8.    As a final matter, we note that waiver would also have been an appropriate

ground for granting summary judgment to NCR. Doubt’s brief in opposition to


                                          -4-
summary judgment was woefully inadequate, containing only two pages of cursory

legal argument on eight causes of action. Given the extreme deficiencies of

Doubt’s brief, the district court’s ability and willingness to address the merits of

the case is commendable.

      AFFIRMED.




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