                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 01 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DENNIS L. TURNEY, a married man,                 No. 11-15300

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00632-MEA

  v.
                                                 MEMORANDUM *
HYUNDAI CONSTRUCTION
EQUIPMENT USA INCORPORATED;
HYUNDAI HEAVY INDUSTRIES
LIMITED; JOHN LIM, an individual,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mark E. Aspey, Magistrate Judge, Presiding

                        Argued and Submitted May 14, 2012
                             San Francisco, California


Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Plaintiff-Appellant Dennis L. Turney (“Turney”) appeals the district court’s

grant of summary judgment in favor of Defendants-Appellees on his claims of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
national origin discrimination in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq., as amended, and age discrimination in violation

of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.

We affirm.

      Turney alleges he was terminated from his position at Hyundai Construction

Equipment USA, Inc. (“HCE”) because of his age and because he is a non-Korean

Caucasian American. HCE claims it terminated Turney for performance-related

problems, a “legitimate, nondiscriminatory reason” for the adverse employment

action. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916-17 (9th Cir. 1996).

      Even though he is Caucasian, Turney belongs to a protected class for

purposes of his national origin discrimination claim because “Title VII applies to

any racial group, whether minority or majority.” Aragon v. Republic Silver State

Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002). Nevertheless, Turney’s national

origin discrimination claim fails because Turney has not produced sufficient

evidence to state a prima facie case. Turney was replaced in his position at HCE

by a man who, like him, was Caucasian American. Turney has identified no

admissible evidence of national origin discrimination in his appellate briefs. The

district court correctly granted summary judgment in favor of Defendants-

Appellees on Turney’s Title VII claim.


                                           2
      Though Turney’s evidence of age discrimination is stronger than his

evidence of national origin discrimination, it is still insufficiently probative to

“raise a triable issue that [HCE’s] proffered reason [for terminating Turney] is

pretext for unlawful discrimination.” Earl v. Nielsen Media Research, Inc., 658

F.3d 1108, 1112 (9th Cir. 2011). Turney has not shown he was replaced by a

“substantially younger” employee. See O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308, 313 (1996). Furthermore, the comments allegedly made by

defendant John Lim are more properly characterized as stray remarks than direct

evidence of discrimination. See Nidds, 113 F.3d at 918-19 (“old timers” comment

insufficient to “create an inference of age discrimination”); Nesbit v. Pepsico, Inc.,

994 F.2d 703, 705 (9th Cir. 1993) (ambivalent comment not tied directly to

termination is “at best weak circumstantial evidence of discriminatory animus”);

Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438-39 (9th Cir. 1990). The district

court did not err in granting summary judgment in favor of Defendants-Appellees

on Turney’s ADEA claim.

      AFFIRMED.




                                            3
