                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PENDAR FAZELI,                                   No. 11-56375

              Plaintiff - Appellant,             D.C. No. 8:10-cv-00541-AG-AN

  v.
                                                 MEMORANDUM *
BANK OF AMERICA, NA, a
Corporation, AKA Bank of America
Corporation,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                        Argued and Submitted May 9, 2013
                              Pasadena, California

Before: WARDLAW and MURGUIA, Circuit Judges, and RESTANI, Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
      Pendar Fazeli appeals the district court’s grant of summary judgment in

favor of Bank of America. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      The district court correctly concluded that Fazeli failed to establish a prima

facie case of retaliation under California Government Code § 12940(h) because he

did not provide adequate probative evidence of a causal link between his

termination and his protected activity. See, e.g., Yanowitz v. L'Oreal USA, Inc.,

116 P.3d 1123, 1130 (Cal. 2005) (applying the burden-shifting framework from

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), to retaliation

claims brought under Cal. Gov’t Code § 12940(h)). While the time between

Fazeli’s protected act and his termination was less than three months, the

surrounding circumstances do not suggest a causal link between Fazeli’s filing of a

sexual harassment complaint and his termination.1 See Van Asdale v. Int’l Game

Tech., 577 F.3d 989, 1003 (9th Cir. 2009) (noting that we have “made clear that ‘a

specified time period cannot be a mechanically applied criterion,’ and have

cautioned against analyzing temporal proximity ‘without regard to its factual


      1
         Fazeli’s argument that the district court required him to “rebut” the Bank’s
proffered reasons for his termination in the prima facie stage also lacks merit. The
district court properly considered the surrounding factual circumstances and
concluded that the short time period, taken in context, did not create an inference
of causation.

                                          2
setting.’”) (quoting Coszalter v. City of Salem, 320 F.3d 968, 977–78 (9th Cir.

2003)). After Fazeli filed his complaint, the Bank undertook a reasonably

thorough investigation of his claim and ultimately fired the alleged harasser, who

was his subordinate. During the investigation, as well, Fazeli admitted his own bad

judgment in allowing the subordinate to sleep at his home. The district court

correctly concluded that, in light of the Bank’s conduct, it would be unreasonable

to infer that it would then turn around and fire Fazeli for making this complaint.

Because Fazeli failed to adduce any other evidence of causation, he failed to make

out a prima facie case of retaliation.

      The district court also correctly concluded that even if Fazeli had established

a prima facie case of retaliation, he failed to put forward either direct evidence or

“specific and substantial” circumstantial evidence that the Bank’s proffered

legitimate reasons for his termination were pretextual. Villiarimo v. Aloha Island

Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). In light of Fazeli’s decision not to

fire his subordinate when she threatened to go public with her allegations against

him, the Bank’s explanation that it fired Fazeli because of a “conflict of interest” is

not “so implausible as to be unworthy of credence.” Norris v. City and Cnty. of

San Francisco, 900 F.2d 1326, 1330 (9th Cir. 1990). Nor is the Bank’s

explanation that Fazeli breached its investigation’s confidentiality by asking his


                                           3
coworkers about events related to the investigation “unworthy of credence.” Id.

Whether the Bank correctly interpreted its Code of Ethics or its confidentiality

policy is irrelevant if it “honestly believed its reason[s] for its actions,” even if

those reasons were “foolish or trivial or even baseless.” Villiarimo, 281 F.3d at

1063 (internal quotation marks and citation omitted).

       AFFIRMED.




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