                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 24 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CYRUS RAPHAEL,                                  No.    16-56759

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-05080-SVW-JEM
 v.

TESORO CORPORATION, a Corporation;              MEMORANDUM*
et al.,

                Defendants-Appellees.

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

                       Argued and Submitted April 13, 2018
                              Pasadena, California

Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.

      Plaintiff Cyrus Raphael appeals the district court’s grant of summary

judgment to his former employer, Tesoro Refining & Marketing Company, on




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
several California state-law causes of action arising from Raphael’s termination in

March 2014. The appeal lacks merit.

      The district court properly granted summary judgment to Tesoro on

Raphael’s claim for race discrimination in violation of Cal. Gov’t Code

§ 12940(a). The McDonnell Douglas burden-shifting framework applies to claims

of disparate treatment brought under California’s Fair Employment and Housing

Act, which includes § 12940(a). Merrick v. Hilton Worldwide, Inc., 867 F.3d

1139, 1145 (9th Cir. 2017). Assuming that Raphael has established a prima facie

case at step one, Tesoro has met its step-two burden by offering a non-

discriminatory justification for the termination: namely, that Raphael repeatedly

violated company policy by engaging in hostile and insubordinate conduct and

using profanity toward his supervisor, Loren Ahlen, and that Raphael yelled at and

harassed three different contractors who worked with Tesoro. At step three, it is

Raphael’s burden to “raise a triable issue suggesting that the employer’s proffered

reason is mere pretext for unlawful discrimination, or offer other evidence of

discriminatory motive.” Id. at 1146.

      Raphael failed to meet this burden because he did not offer enough evidence

to create a genuine issue as to whether Tesoro’s asserted reasons for firing him

were pretextual. He first offers direct evidence of pretext through the declarations

of two individuals, Astrid Labadie and Ritchie Roberts, which state that Ahlen


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made derogatory remarks toward Raphael prior to 2011 and once in 2012.

However, the declarations are bare-bones; they conspicuously omit the substance

of Ahlen’s alleged remarks, and instead offer only the conclusion that those

remarks were derogatory. Although “very little” direct evidence of discriminatory

intent is needed to defeat summary judgment, Chuang v. Univ. of Cal. Davis, Bd.

of Trs., 225 F.3d 1115, 1128 (9th Cir. 2000) (quoting Godwin v. Hunt Wesson,

Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)), Raphael’s evidence fails to clear even

this low hurdle. First, Raphael has forfeited the argument because his motion in

opposition to summary judgment did not contend that he could show pretext based

on either of these declarations, and he raises the argument for the first time on

appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      Even if the argument were not forfeited, these declarations are too

conclusory to raise a genuine issue regarding pretext. “Conclusory, speculative

testimony in affidavits . . . is insufficient to raise genuine issues of fact and defeat

summary judgment.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th

Cir. 2007). The conclusory nature of the declarations distinguishes this case from

others in which evidence of the specific content of discriminatory statements

overcame summary judgment. See, e.g., Chuang, 225 F.3d at 1128 (reversing

summary judgment when a member of the defendant’s Executive Committee had

said that “‘two Chinks’ in the pharmacology department were ‘more than


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enough’”); Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149–50 (9th Cir.

1997) (reversing summary judgment when the supervisor had referred to another

employee as a “dumb Mexican”).

      Moreover, the record is replete with evidence that Tesoro actually fired

Raphael based on his misconduct. Raphael admits that he repeatedly cursed at and

was insubordinate to Ahlen, and the record shows that Tesoro thoroughly

investigated complaints made by three different contractors that Raphael had

engaged in harassing, disrespectful, and unprofessional conduct toward them. In

view of this record evidence, no reasonable jury could conclude that the vague and

conclusory declarations Raphael offers show that Tesoro’s non-discriminatory

justifications were pretextual.

      Raphael also points to a host of circumstantial evidence, but it does not raise

a genuine issue as to pretext. To avoid summary judgment using circumstantial

evidence, a plaintiff must offer circumstantial evidence that is “specific and

substantial.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)

(quoting Godwin, 150 F.3d at 1222). Raphael’s circumstantial evidence does not

rise to this level. He argues that Tesoro’s investigation into the contractors’

complaints against him was so deficient as to amount to a sham, see Mendoza v. W.

Med. Ctr. Santa Ana, 166 Cal. Rptr. 3d 720, 728 (Cal. Ct. App. 2014), but the

purported flaws Raphael identifies are either non-existent or de minimis.


                                          4                                       16-56759
      Raphael’s retaliation claim under Cal. Gov’t Code § 12940(h) is also subject

to the McDonnell Douglas framework, Lawler v. Montblanc N. Am., LLC, 704

F.3d 1235, 1243 (9th Cir. 2013), and it also fails at step three because Raphael has

not produced evidence of pretext.

      The district court properly granted Tesoro summary judgment on Raphael’s

harassment claim as well. Under Cal. Gov’t Code § 12940(j), a plaintiff must

show harassment that is more than “occasional, isolated, sporadic, or trivial[;]

rather the plaintiff must show a concerted pattern of harassment of a repeated,

routine or a generalized nature.” Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d

846, 851 (Cal. 1999) (quoting Fisher v. San Pedro Peninsula Hosp., 262 Cal. Rptr.

842, 852 (Cal. Ct. App. 1989) (alteration in original)). Raphael has not offered

evidence of harassment anywhere close to this level. For one thing, he admitted in

deposition testimony that he could not recall Ahlen ever making discriminatory

comments to him based on his race or national origin. Even if the Labadie and

Roberts declarations are taken into account, they fall well short of establishing a

“concerted pattern of harassment of a repeated, routine or a generalized nature.”

      Finally, the district court correctly held that Raphael’s claim under Cal.

Gov’t Code § 12940(k) fails in the absence of any underlying discrimination,

harassment, or retaliation. See Merrick, 867 F.3d at 1150; Trujillo v. N. Cty.

Transit Dist., 73 Cal. Rptr. 2d 596, 601–02 (Cal. Ct. App. 1998).


                                          5                                      16-56759
Raphael raises additional arguments, but they are also without merit.

The judgment of the district court is affirmed.




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