                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 29 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE M. NON,                                     No.   15-17259

              Plaintiff-Appellant,               D.C. No. 3:14-cv-01845-VC

 v.
                                                 MEMORANDUM*
COMCAST, INC., DBA Comcast Cable
Communications LLC, DBA Comcast
Cable Communications Management,
LLC, DBA Comcast Corporation, DBA
Comcast Holdings Corporation and
COMCAST CABLE
COMMUNICATIONS MANAGEMENT,
LLC,

              Defendants-Appellees.



JOSE M. NON,                                     No.   15-17260

              Plaintiff,                         D.C. No. 3:14-cv-01845-VC

 and

DANIEL RAY BACON, Counsel of
record for plaintiff,

              Appellant,

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 v.

COMCAST, INC., DBA Comcast Cable
Communications LLC, DBA Comcast
Cable Communications Management,
LLC, DBA Comcast Corporation, DBA
Comcast Holdings Corporation and
COMCAST CABLE
COMMUNICATIONS MANAGEMENT,
LLC,

             Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Vince G. Chhabria, District Judge, Presiding

                       Argued and Submitted July 10, 2017
                           San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LYNN,** Chief District Judge.

      Jose Non appeals the summary judgment in favor of Comcast, Inc. Non

claims that Comcast reprimanded and eventually fired him because of his race and

nationality, in violation of California’s Fair Employment and Housing Act

(“FEHA”) and California public policy. Non’s attorney, Daniel Bacon, appeals the

sanctions order entered against him. We have jurisdiction under 28 U.S.C. § 1291.

      1. We affirm the summary judgment in favor of Comcast because Non failed

      **
             The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
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to raise a triable issue of fact that he was performing according to his employer’s

legitimate expectations, which is required to establish a prima facie case of

employment discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640 n.5 (9th Cir.

2003) (“Under McDonnell Douglas, unlawful discrimination is presumed if the

plaintiff can show that ‘(1) [he] belongs to a protected class, (2) [he] was

performing according to [his] employer’s legitimate expectations, (3) [he] suffered

an adverse employment action, and (4) other employees with qualifications similar

to [his] own were treated more favorably.’”) (quoting Godwin v. Hunt Wesson,

Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)). “California courts use the familiar

McDonnell Douglass burden-shifting test when analyzing disparate treatment

claims under FEHA.” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112

(9th Cir. 2011) (citing Guz v. Bechtel Nat. Inc., 8 P.3d 1089, 1113 (Cal. 2000)).

Under the McDonnell Douglass burden-shifting test, the employee “bears the

initial burden of establishing a prima facie case of employment discrimination.” Id.

Once the employee has done so, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its actions. Id. If the employer articulates a

legitimate reason for its actions, the employee must raise a triable issue that the

employer’s proffered reason is pretext for unlawful discrimination. Id.


                                           3
       Under the Collective Bargaining Agreement (“CBA”) that governed the

terms of Non’s employment, Comcast can immediately terminate employees who

commit “serious offenses.” The CBA defines “serious offenses” to include, inter

alia: “Willful falsification of . . . time sheets or other [Comcast] records . . .

[s]leeping during an employee’s actual work hours . . . [and] [c]arelessness,

including violation of [Comcast’s] safety rules and regulations, endangering the

safety of oneself or others or endangering [Comcast’s] property and equipment.” In

2012, Comcast reprimanded Non twice for “serious offenses.” In 2013, Comcast

eventually terminated Non for his third “serious offense” after an alarmed member

of the public called Comcast to report that Non was asleep in his work truck with

its engine running for about forty minutes. Because Non committed three “serious

offenses” in a relatively short time span—any one of which could have formed the

basis for his immediate termination under the CBA—he failed to raise a triable

issue of fact that “[he] was performing according to [Comcast’s] legitimate

expectations.” Vasquez, 349 F.3d at 640 n.5; See Diaz v. Eagle Produce Ltd.

P'ship, 521 F.3d 1201, 1208 (9th Cir. 2008).

       2. The district court acted contrary to this court’s precedent when it

sanctioned Non’s attorney Bacon without sufficient notice of the potential

sanctions prior to the hearing on Non’s motion to extend the deadline to complete


                                             4
discovery. See United States v. Tillman, 756 F.3d 1144, 1152 (9th Cir. 2014)

(“What began as a status hearing about an e-mail exchange over vouchers

ballooned into a full-blown hearing on attorney sanctions. . . . The question here is

not one of interpretation of fair notice; the reality is that, contrary to our precedent,

there was no notice.”); Cole v. U.S. Dist. Ct. for Dist. of Idaho, 366 F.3d 813, 822

(9th Cir. 2004) (citing Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198 n.4

(9th Cir. 1999)) (“[N]otice require[s] more than that [the attorney] be aware of the

sanctionable conduct, but that the district court must provide notice of the potential

sanctions and the reasons for the sanction.”). Although the district court held a

hearing on the motion to extend the discovery deadline, the district court did not

provide Bacon with any notice that it would impose—or even consider—sanctions

at the hearing. Therefore, we reverse the sanctions order entered against Bacon.

      AFFIRMED IN PART; REVERSED IN PART.

The parties shall bear their own costs associated with this appeal.




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