                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 05 2012

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




                            FOR THE NINTH CIRCUIT



JASON NIELSEN,                                    No. 10-17658

              Plaintiff - Appellant,              D.C. No. 2:09-cv-00960-WBS-
                                                  KJN
  v.

TROFHOLZ TECHNOLOGIES, INC., a                    MEMORANDUM *
California Corporation; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Eastern District of California
                 William B. Shubb, Senior District Judge, Presiding

                      Argued and Submitted February 14, 2012
                             San Francisco, California

Before: THOMAS, FISHER, and IKUTA, Circuit Judges.

       Jason Nielsen fails to raise a genuine issue of material fact as to whether the

legitimate, nondiscriminatory reasons offered by his employer, Trofholz

Technologies, Inc. (TTI), for criticizing his work performance and subsequently

terminating him were pretext for retaliation. See Hashimoto v. Dalton, 118 F.3d


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. Rule 36-3.
671, 680 (9th Cir. 1997); Arteaga v. Brink’s, Inc., 77 Cal. Rptr. 3d 654, 667 (Ct.

App. 2008). Specifically, Nielsen fails to show why TTI’s explanation that it fired

Nielsen for his failure to return from a leave of absence is unworthy of credence,

given that the Human Resources action notice upon which Nielsen exclusively

relies does not purport to approve additional leave, TTI’s President and Human

Resources Manager both testified that the notice was not an approval, and Nielsen

failed to come forward with evidence that he had received approval. See

Hashimoto, 118 F.3d at 680. Nor does Nielsen’s contention that he received

negative performance reviews after participating in the protected activity, standing

alone, create a genuine issue of material fact with respect to pretext, given TTI’s

documentation of problems with Nielsen’s work and Nielsen’s own admission of

work problems before the protected activity took place. Accordingly, the district

court did not err in granting summary judgment on Nielsen’s retaliation claim

under the California Fair Employment and Housing Act (FEHA).

      Nielsen’s claims of discrimination and harassment on account of his

disability fail for want of causation, see Brundage v. Hahn, 66 Cal. Rptr. 2d 830,

835 (Ct. App. 1997), where Nielsen presents no evidence that TTI treated him

differently than other employees because of his disability, that he requested




                                          -2-
accommodations that he was not given, or that his ultimate termination had any

connection to his disability.

      Nielsen does not establish a prima facie case of gender discrimination under

FEHA because a romantic relationship between a supervisor and employee does

not, without more, give rise to a sexual discrimination claim. See Proskel v. Gattis,

49 Cal. Rptr. 2d 322, 324 (Ct. App. 1996). In the absence of any evidence of

widespread sexual conduct that altered the conditions of his employment and

created an abusive working environment, Nielsen also does not raise a genuine

issue of material fact that he suffered gender-based harassment. See Miller v.

Dep’t of Corr., 115 P.3d 77, 87–88 (Cal. 2005). Because Nielsen’s Title VII claim

requires the same showing as his FEHA gender-based hostile work environment

claim, it likewise fails. See Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th

Cir. 2000).

      Our dismissal of Nielsen’s FEHA claims is fatal to his claim of wrongful

termination in violation of public policy because the public policy upon which

Nielsen relies is FEHA.

      Finally, the district court did not abuse its discretion in ruling as an

evidentiary matter that TTI’s Human Resources Director, Vice President, and

President had personal knowledge of TTI’s reduction in force, where each witness


                                          -3-
exhibited familiarity with company management and their testimonies were

corroborated.

      AFFIRMED.




                                      -4-
