                                                                             FILED
                             NOT FOR PUBLICATION                             NOV 20 2013

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



                             FOR THE NINTH CIRCUIT


 DEXTER HOOKER,                                       No. 12-55134

          Plaintiff-Appellant,                        D.C. No. 8:11-cv-00981-JVS-
                                                      MRW
  v.

 PARKER HANNIFIN CORPORATION,                         MEMORANDUM*

          Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                     Argued and Submitted October 10, 2013
                              Pasadena, California

Before:      REINHARDT and CHRISTEN, Circuit Judges and SEDWICK,
             District Judge.**
___________________________________
      *This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3(a).

      **The Honorable John W. Sedwick, Senior United States District Judge for
the District of Alaska, sitting by designation.
      Appellant Dexter Hooker (“Hooker”) seeks review of the district court’s

order granting summary judgment in favor of Appellee Parker Hannifin

Corporation (“Parker”) on claims brought pursuant to California’s Fair

Employment and Housing Act (“FEHA”) and his claim for wrongful termination.

We review de novo, viewing the evidence in the light most favorable to the non-

moving party to determine whether any genuine issues of material fact remain.

Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003).

      The district court granted Parker’s motion for summary judgment on the

FEHA claims based on Hooker’s failure to exhaust administrative remedies, and

we affirm. See Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th

1607, 1613, 43 Cal. Rptr. 2d 57, 61 (Ct. App. 1995) (before suing employer under

FEHA, employees must exhaust administrative remedies). Hooker’s first

administrative complaint filed with the Department of Fair Employment and

Housing (“DFEH”) was timely but provides no basis for exhaustion. It raised

allegations of age, race, and color discrimination, which are unrelated to the

disability and medical leave discrimination claims in Hooker’s current complaint

against Parker. Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001)

(plaintiff failed to exhaust disability discrimination claim when original

administrative complaint only alleged race discrimination and could not be

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construed to include disability discrimination allegations because these two types

of allegations were not reasonably related).

      Hooker’s second DFEH complaint alleging disability and medical leave

discrimination was untimely. It cannot be rendered timely by finding that it related

back to the first DFEH complaint because there were no facts alleged in the first

DFEH complaint that could support a disability discrimination theory. Id. at 899.



      The district court also granted summary judgment for Parker on Hooker’s

wrongful termination claim, and we affirm. In California, both disability

discrimination and retaliation for exercising the right to family medical leave

provide a basis for a common law wrongful discharge claim. See City of Moorpark

v. Superior Court, 18 Cal. 4th 1143, 1161, 77 Cal. Rptr. 2d 445, 456, 959 P.2d 752,

763 (1998) (disability discrimination in violation of FEHA can form basis of

wrongful discharge claim); Nelson v. United Techs., 74 Cal. App. 4th 597, 612, 88

Cal. Rptr. 2d 239, 248 (Ct. App. 1999) (retaliation for taking medical leave can

form basis of a wrongful discharge claim).

      When, as here, a case involves a claim for wrongful termination based on an

allegation of retaliatory and discriminatory employment termination, California

applies the federal McDonnell Douglas three-part burden-shifting test. Wills v.

                                          3
Superior Court, 195 Cal. App. 4th 143, 159, 125 Cal. Rptr. 3d 1, 14-15 (Ct. App.

2011) (citing Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354-55, 100 Cal. Rptr. 2d

352, 378-79, 8 P.3d 1089, 1113 (2000)). The employee has the burden to establish

a prima facie case of discrimination. 195 Cal. App. 4th at 159, 125 Cal. Rptr. 3d at

15. If met, the burden shifts to the employer to establish a legitimate,

nondiscriminatory reason for the termination. Id. at 160, 125 Cal. Rptr. 3d at 15.

If the employer does so, the burden shifts back to the plaintiff to provide

substantial evidence that the employer’s stated reason for termination was untrue

or pretextual or evidence that the employer acted with a discriminatory motive. Id.

      Assuming Hooker established a prima facie case, Parker established a

nondiscriminatory, nonretaliatory reason for terminating Hooker—excessive

attendance infractions. During the five months before his termination, Hooker

received 4.5 attendance infractions. Hooker does not dispute these infractions.

Parker’s written policies state that four or more infractions within a six-month

period could lead to adverse employment actions.

      Thus, the burden shifts back to Hooker. To establish pretext, he “must

demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons . . . .” Hersant v.

Dep’t of Soc. Servs., 57 Cal. App. 4th 997, 1005, 67 Cal. Rptr. 2d 483, 488 (Ct.

                                          4
App. 1997). Hooker contends he met this burden because his performance review

form, dated just a few weeks before his termination, contradicts Parker’s stated

reason by noting that his attendance had been acceptable. That form did not say so

much. It stated that his attendance had improved over prior years, but it also

warned that Hooker already had three attendance infractions during the prior six

months.

      Hooker also argues that he met his burden because he was terminated a week

after taking two days of approved medical leave. While evidence of temporal

proximity is sufficient to demonstrate a prima facie case of retaliation, the first step

in the McDonnell Douglas burden-shifting test, it is ordinarily insufficient to

satisfy the secondary burden to provide evidence of pretext. Loggins v. Kaiser

Permanente Int’l, 151 Cal. App. 4th 1102, 1112, 60 Cal. Rptr. 3d 45, 54 (Ct. App.

2007). In this case, temporal proximity between Hooker’s termination and his use

of two days of medical leave “does not create a triable issue as to pretext, and

summary judgment for the employer is proper.” Arteaga v. Brink’s Inc., 163 Cal.

App. 4th 327, 357, 77 Cal. Rptr. 3d 654, 678 (Ct. App. 2008).



AFFIRMED.




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