                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PIYUSH GUPTA,                                   No.    16-15224

                Plaintiff-Appellant,            D.C. No. 5:14-cv-01358-EJD

 v.
                                                MEMORANDUM*
INTERNATIONAL BUSINESS
MACHINES CORPORATION,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward J. Davila, District Judge, Presiding

                             Submitted July 9, 2018**
                             San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
      Plaintiff Piyush Gupta appeals from an adverse partial summary judgment

and a defense verdict in his wrongful termination lawsuit against International

Business Machines Corporation (IBM). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      1.     The district court properly dismissed Gupta’s disability discrimination

claim under the California Fair Employment and Housing Act (FEHA), Cal. Gov’t.

Code § 12900 et seq., on the grounds that Gupta provided no evidence that he was

terminated “because of his disability.” See Nealy v. City of Santa Monica, 234 Cal.

App. 4th 359, 378 (2015). Gupta argues that the temporal proximity between the

onset of his disability and his termination is sufficient to establish a prima facie

case of discrimination.

      Gupta provides no supporting evidence to suggest discrimination beyond the

temporal connection between his disability and termination. See Arteaga v.

Brink’s Inc., 163 Cal. App. 4th 327, 341 (2008). In fact, Gupta in his deposition

conceded: “I do not have any facts [that cause me to believe IBM terminated me

because I had this back condition].” The record demonstrates IBM’s efforts to

accommodate his disability. For example, Gupta received and subsequently

declined short-term disability leave, was approved to fly business class, was in the

process of receiving ergonomic furniture, and never felt any animus because of his

disability. Each of these facts undermines his assertion that his disability was the



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reason for his firing; rather, the evidence shows Gupta was laid off because he had

suggested it. In the circumstances, Gupta failed to offer sufficient temporal

connection or other circumstantial evidence to establish that his disability caused

his termination. No reasonable finder of fact could conclude otherwise. Therefore,

the district court’s grant of summary judgment was proper.

      2.     The district court applied the proper standard regarding pretext after

finding that IBM had articulated a business-related, non-discriminatory reason for

terminating Gupta’s employment. See Noyes v. Kelly Servs., 488 F.3d 1163,

1169–70 (9th Cir. 2007). The district court correctly stated that Gupta “must

demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in [IBM’s] proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the non-discriminatory reasons.” The

district court explained that providing new discriminatory evidence is one way to

demonstrate that the employer’s reasons for termination were pretextual.

      Gupta’s evidence of temporal proximity, “even if it may technically

constitute a prima facie case, is too weak to raise a rational inference that

discrimination occurred” and to satisfy his burden to show pretext. Guz v. Bechtel

Nat’l, Inc., 24 Cal. 4th 317, 362 (2000). Therefore, the district court’s grant of

summary judgment was proper.



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      3.     As discussed above, the district court properly ruled that Gupta failed

to state a claim under FEHA. Therefore, his claim for wrongful termination in

violation of public policy also fails.1 Dep’t of Fair Emp’t and Hous. v. Lucent

Techs., Inc., 642 F.3d 728, 748–49 (9th Cir. 2011).

      4.     Contrary to Gupta’s claims, nothing in the district court’s order

suggests improper credibility determinations or weighing of conflicting evidence.

The district court focused on the material facts, including that Gupta volunteered

for termination, and properly ignored his irrelevant explanation for the offer. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Gupta’s reasoning

for volunteering to be laid off does not undermine IBM’s explanation that they

chose to “take him up on his suggestion.” The district court correctly applied the

summary judgment standard.

      5.     The district court also correctly applied California law in dismissing

Gupta’s fraud claim. To constitute a misrepresentation, whether by representation

or concealment, the statement must be false. Lazar v. Superior Court, 12 Cal. 4th

631, 638 (1996). The district court found that the Instant Message conversation

between Gupta and Mitchak did not involve any “misstatement[s] of fact” or

“misrepresentation [of] a past or existing material fact.”



1
 Gupta also concedes that his “claim for wrongful termination arises from IBM’s
violation of his statutory rights under the FEHA.”

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      Even if Gupta could demonstrate that Mitchak made a misrepresentation by

concealment or affirmative statement, he fails to allege any facts to support the

other elements of fraud. See id. Gupta provides no evidence regarding Mitchak’s

knowledge that his statements were false or his intent to defraud, both elements

under California law. Id. Therefore, summary judgment was warranted dismissing

Gupta’s fraud claim.

      6.     The district court did not abuse its discretion in denying Motion in

Limine No. 3. Gupta was required to “identify a reasonable accommodation . . .

through the litigation process, including discovery.” Scotch v. Art Inst. Of Cal.-

Orange Cty., Inc., 173 Cal. App. 4th 986, 995 (2009). Gupta failed to state in his

interrogatories that denial of short-term disability was a fact he sought to support

his reasonable accommodation claim.

      AFFIRMED.




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