                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 13 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

KEVIN KELLEHER, an individual,                   No. 11-55159

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00832-JFW-
                                                 VBK
  v.

HERTZ CORPORATION, a Corporation                 MEMORANDUM*
Erroneously Sued As The Hertz
Corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                             Submitted July 11, 2012**
                               Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.***



        *
             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).
        ***
             The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for Alaska, sitting by designation.
      Kevin Kelleher (“Plaintiff”) appeals the district court’s grant of summary

judgment to his former employer, Hertz Corporation (“Hertz”), in Plaintiff’s

diversity action alleging age discrimination in violation of California Government

Code Section 12940 and wrongful termination in violation of public policy. Both

claims rely on Plaintiff’s allegation that Hertz engaged in unlawful age

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

      California has adopted the Supreme Court’s three-step burden shifting test

for discrimination claims set forth in McDonnell Douglas Corporation v. Green,

411 U.S. 792 (1973). See Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal.

2000). Plaintiff must first establish a prima facie case of age discrimination by

providing evidence that: “(1) he was a member of a protected class, (2) he was

qualified for the position he sought or was performing competently in the position

he held, (3) he suffered an adverse employment action, such as termination,

demotion, or denial of an available job, and (4) some other circumstance suggests

discriminatory motive.” Id. If the plaintiff establishes this prima facie case, the

employer must rebut the presumption of age discrimination that arises by

presenting a legitimate, nondiscriminatory reason for the adverse action. Id. at

1114; Reeves v. MV Transp., Inc., 111 Cal. Rptr. 3d 896, 902 (Ct. App. 2010).




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      “If the employer sustains this burden, the presumption of discrimination

disappears.” Guz, 8 P.3d at 1114. To defeat a summary judgment motion, the

“employee must then offer substantial evidence that the employer’s stated

nondiscriminatory reason for the adverse action was untrue or pretextual, or

evidence the employer acted with a discriminatory animus, or a combination of the

two, such that a reasonable trier of fact could conclude the employer engaged in

intentional discrimination.” MV Transp., Inc., 111 Cal. Rptr. 3d at 902 (internal

quotation marks and citations omitted).

      Here, Plaintiff introduced evidence sufficient to make out a prima facie case

of age discrimination, because (1) he was over the age of 40, and thus a member of

a protected class, (2) he was qualified for the restructured Santa Barbara Area

Manager position, (3) he was laid off, and (4) Hertz retained two managers aged 31

to the restructured positions.

      However, Hertz was able to rebut the presumption of age discrimination

based on Hertz’s restructuring model that focused on factors such as (1) Plaintiff’s

performance and experience in comparison with other employees, (2) geographic

considerations, and (3) the most efficient span of control for managers.

      Therefore, the burden again shifted to Plaintiff to introduce specific and

substantial evidence that Hertz’s business reasons were pretextual or untrue. The


                                          3
district court correctly found that Plaintiff failed to meet this burden, because

Plaintiff did not provide specific and substantial evidence of age discrimination.

See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998).

      AFFIRMED.




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