                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                                 FEB 16 2010

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

MARK D. ROME,                                    No. 08-56688

              Plaintiff - Appellant,             D.C. No. 8:04-cv-00332-JVS-PJW

  v.
                                                 MEMORANDUM *
SMITHKLINE BEECHAM
CORPORATION, DBA GlaxoSmithKline,

              Defendant - Appellee.


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

                      Argued and Submitted February 2, 2010
                               Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.

       Following a bench trial, the district court entered judgment in favor of

SmithKline Beecham Corporation (“GSK”) on Mark Rome’s claims of age-based

discrimination, harassment, retaliation, and breach of contract. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Discrimination. The district court did not clearly err in rejecting Rome’s

claim that GSK terminated his employment because of age-based discrimination.

See Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, 583 F.3d 1232,

1236 (9th Cir. 2009) (clear error standard of review); Cal. Gov’t Code § 12940(a)

(prohibition on age-based discrimination). Though GSK’s investigation of Rome’s

alleged violation of GSK’s grants policy left much to be desired, the district court’s

view that Rome’s employment was not terminated because of his age “is plausible

in light of the record viewed in its entirety,” and, therefore, must be affirmed “even

if the reviewing court would have weighed the evidence differently had it sat as the

trier of fact.” Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1196 (9th Cir. 2009)

(citation and quotation omitted).

      Nor did the district court clearly err in accepting GSK’s proffered

justification for its decision not to hire Rome as an HIV Clinical Specialist. From

the evidence presented at trial, the district court reasonably may have concluded

that other candidates were more qualified than Rome, that Rome was relatively

unenthusiastic about the position, and that Rome’s age was not a consideration in

the hiring decision.

      2. Harassment. The district court did not clearly err in rejecting Rome’s

harassment claim. We are not “possessed of a ‘definite and firm conviction’” that


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Rome’s manager engaged in conduct of sufficient severity and pervasiveness to

alter the terms and conditions of Rome’s employment. SEC v. Rubera, 350 F.3d

1084, 1093 (9th Cir. 2003) (quoting Easley v. Cromartie, 532 U.S. 234, 242

(2001)) (standard of review); Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243,

263–64 (2009) (elements of hostile work environment claim).

       3. Retaliation. The district court did not clearly err in rejecting Rome’s

claim that his employment was terminated because he filed a complaint with the

Employee Response Center. Rubera, 350 F.3d at 1093 (standard of review); Cal.

Gov’t Code § 12940(h) (retaliation). Rome did not advance an independent claim

that GSK violated his rights by failing to conduct a sufficient investigation of his

complaint to the Employee Response Center. See Cal. Gov’t Code § 12490(j)(1),

(k).

       4. Breach of Contract. Rome’s claim that GSK lacked a “good faith” basis

for terminating his employment is foreclosed by our previous decision affirming

the grant of summary judgment on this claim. Rome v. Smithline Beecham Corp.,

No. 05-55574, 232 Fed. Appx. 711 (9th Cir. 2007); see also Cotran v. Rollins

Hudig Hall Int’l, Inc., 17 Cal. 4th 93, 95–96 (1998) (wrongful termination

standard).

       AFFIRMED.


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