                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 18 2016

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



                            FOR THE NINTH CIRCUIT


JUAN CUEVAS,                                     No. 14-15371

              Plaintiff - Appellant,             D.C. No. 3:12-cv-05916-CRB

  v.
                                                 MEMORANDUM*
SKYWEST AIRLINES, INC.,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                            Submitted March 14, 2016**
                             San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges, and KORMAN,*** Senior
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 Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Juan Cuevas appeals the district court’s order granting summary judgment in

his wrongful termination suit against SkyWest Airlines (“SkyWest”). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

1.    The district court did not err in dismissing Cuevas’s wrongful termination

claims for intentional retaliation. Assuming that Cuevas established a prima facie

retaliation case, SkyWest has demonstrated a legitimate, non-retaliatory reason for

suspending and firing Cuevas—insubordination. As a result, the burden shifts to

Cuevas to demonstrate intentional retaliation by SkyWest. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Yanowitz v. L’Oreal USA,

Inc., 116 P.3d 1123, 1130 (Cal. 2005). Cuevas may succeed in demonstrating

intentional retaliation either “directly by persuading the court that a [retaliatory]

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256 (1981). Cuevas has offered no direct

evidence of intentional retaliation by SkyWest. Further, the indirect and

circumstantial evidence offered by Cuevas is not specific and substantial. See Blue




                                           -2-
v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998). Accordingly, Cuevas failed to

demonstrate intentional retaliation.1

2.    Cuevas was not engaged in protected activity when he refused to sign the

Investigation Confidentiality Memo (“ICM”). First, Cuevas waived this claim by

not presenting it in his complaint. See Navajo Nation v. U.S. Forest Serv., 535

F.3d 1058, 1080 (9th Cir. 2008) (en banc) (“[W]here . . . the complaint does not

include the necessary factual allegations to state a claim, raising such claim in a

summary judgment motion is insufficient to present the claim to the district

court.”). Even if Cuevas had not waived this issue, SkyWest did not violate

California Labor Code § 232.5 by requiring Cuevas to sign the ICM. The ICM did

not unlawfully restrict Cuevas’s ability to communicate about his working

conditions. SkyWest’s policy was to utilize the ICM form whenever there was a

human resources investigation, and the ICM itself states that it is related to an

“investigation” regarding “a confidential personnel matter.” Cuevas has not

provided any authority showing that such a confidentiality requirement, in

connection with a company’s internal investigation, violates California law.



      1
       Because we conclude that Cuevas has not demonstrated retaliation, we need
not determine whether Cuevas’s employment was subject to an implied term (from
the SkyWest Employee Handbook) that he would not be suspended or terminated
for reporting a suspected violation of law or policy.

                                          -3-
3.    Without deciding whether the district court erred in applying a “but-for,” as

opposed to a “substantial factor,” causation standard to Cuevas’s retaliation claim,

any such error was nevertheless harmless. The district court only applied the but-

for standard in addressing the causation prong of Cuevas’s prima facie case. The

district court found that Cuevas had established causation in his prima facie case.

Accordingly, such alleged error did not affect Cuevas’s substantial rights, because

the result would have been the same had the district court applied the substantial

factor standard instead. See Fed. R. Civ. P. 61.

      AFFIRMED.




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