                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 10 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PAUL ALLEN WEXLER,                               No.   16-56348

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-03518-AB-AJW
 v.

JENSEN PHARMACEUTICALS, INC.,                    MEMORANDUM*
erroneously sued as, Janssen
Pharmaceuticals, Inc.; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andre Birotte, Jr., District Judge, Presiding

                      Argued and Submitted February 7, 2018
                               Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,** District
Judge.

      Paul Allen Wexler started working for Jensen Pharmaceuticals, Inc. (JPI) in

2002 as a sales representative. In 2011, JPI adopted a new sales model and in

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
2012, Jason Plumley became Wexler’s supervisor. Wexler had difficulty adapting

to the new sales model. He was counseled that he needed to change his sales

approach, and Plumley placed Wexler in a Performance Improvement Plan (PIP)

when his sales did not improve. Wexler’s performance did not improve during the

PIP and JPI terminated his employment. Wexler brought this action alleging that

his termination was due to age discrimination by Plumley. The district court

granted summary judgment for JPI finding that Wexler had not shown that he was

performing competently and there was no direct evidence of discrimination. We

have jurisdiction under 28 U.S.C. § 1291 and we affirm.1

      An order granting summary judgment is reviewed de novo. Weiner v. San

Diego Cty., 210 F.3d 1025, 1028 (9th Cir. 2000). California’s Fair Employment

and Housing Act (FEHA) prohibits employers from discharging employees over

the age of forty based on their age. Cal. Gov’t Code §§ 12926(b), 12940(a).

California courts apply the McDonnell Douglas burden-shifting framework to

analyze disparate treatment claims under FEHA. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–05 (1973); Merrick v. Hilton Worldwide, Inc., 867 F.3d

1139, 1145–46 (9th Cir. 2017) (citing Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317



      1
             The facts are familiar to the parties and are restated here only as
necessary to resolve the issues raised in this appeal.
                                           2
(2000)). To prevail on summary judgment, an employer must show either that (1)

plaintiff could not establish one of the elements of her FEHA claim or (2) there

was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's

employment. Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir.

2013). To make a prima facie showing of discrimination under FEHA, “a plaintiff

must show that: (1) she is a member of a protected class; (2) she was performing

competently in the position she held; (3) she suffered an adverse employment

action, such as termination; and (4) some other circumstances that suggest a

discriminatory motive.” Id.

      The district court recognized the applicable McDonnell Douglas burden-

shifting standard, but found, based on largely undisputed evidence, that Wexler

“was not performing competently at the time of his termination.” It determined

that beginning in 2013:

      Plaintiff’s sales results, especially for Invokana, were poor and his
      performance consistently fell short because he did not successfully
      adopt the value based selling model. Once Plaintiff was placed on a
      PIP in 2014, Plumley repeatedly noted that Plaintiff failed to
      incorporate the new selling model, did not do adequate pre-call
      planning or execute his plans, and he did not consistently implement
      Plumley’s suggestions. A different manager, Stark, found similar
      problems: that Plaintiff’s calls were ineffective and he failed to do
      adequate pre-call planning. Plaintiff’s performance did not markedly
      improve during the PIP. Plaintiff was the lowest-performing
      representative in his district at the time he was terminated.


                                           3
      Wexler does not deny that his sales were down, but nonetheless asserts that

the real reason for the termination of his employment was age discrimination by

Plumley. However, on this record he has not raised a genuine issue of material

fact. Wexler’s evidence of any age based animus is weak, at best. Plumley is

reputed to have commented that “older reps were the hardest reps to train, were

most challenging.” The district court noted that “it is a stretch to say this comment

reflects discriminatory animus, and indeed the Court previously characterized it as

unremarkable: whether ‘older’ employees means employees with more tenure or

refers to their age is ambiguous, and furthermore, the remark is not demeaning, but

simply characterizes such employees as harder to train.” See Nesbit v. Pepsico,

Inc., 994 F.2d 703, 705 (9th Cir. 1993) (noting that the supervisor’s comment “we

don’t necessarily like gray hair,” although more than a stray remark, was uttered in

an ambivalent manner and was not directly tied to the employee’s termination).

The only other arguably direct evidence of ageism is that Plumley did not allow

Wexler to lead the weekly conference calls. But this fact is more reasonably

explained on the basis that Wexler was not following the new sales model.

      Even if we were to conclude that there was a material issue of fact as to

whether Wexler was performing competently, Wexler cannot show that JPI’s

stated reason for terminating Wexler’s employment was a pretext. His efforts to


                                          4
show pretext founder because Wexler alleged that only Plumley, not others at JPI,

discriminated on the bases of age, and the record shows that other managers at JPI

agreed that Wexler was not performing competently. Wexler admitted that he did

not attribute any alleged age-bias comment to any JPI manager other than Plumley.

Moreover, the record shows that the Regional Business Manager, a District

Business Manager, and an Executive District Manager, all expressed concern that

Wexler was not implementing the new sales model. The evidence that multiple

managers were aware of Wexler’s performance and agreed that he was not

performing competently, shows that JPI’s reason for terminating Wexler’s

employment—his poor performance—was not a pretext, even if Plumley was

biased against older employees.

      Wexler was an outstanding sales representative for JPI for ten years.

However, the undisputed evidence in this record shows that he had difficulty

adapting when JPI introduced a new sales model, that for over a year JPI counseled

him on how to implement the new model, and that Wexler’s employment was

terminated when, after a PIP, his performance did not improve. Reasonable minds

might differ on whether Wexler’s performance had deteriorated to the point that his

employment should have been terminated, but there is not sufficient evidence in




                                         5
this record to allow a jury to conclude that JPI terminated Wexler’s employment

because of Plumley’s alleged bias.

      The district court’s grant of summary judgment for JPI is AFFIRMED.




                                        6
                                                                        FILED
Wexler v. Jensen Pharmaceuticals, Inc., No. 16-56348                     JUL 10 2018
                                                                    MOLLY C. DWYER, CLERK
Bataillon, District Judge, dissenting.                                U.S. COURT OF APPEALS


        I respectfully dissent from the majority’s conclusion that there is not

sufficient evidence in this record from which a jury could conclude that JPI

terminated Wexler’s employment because of age bias. I would reverse the district

court and allow the action to proceed to trial.

        It appears the majority substitutes its judgment for that of a jury as it weighs

evidence and credits the testimony of JPI’s witnesses over Wexler’s.                 The

majority’s analysis gives a selective and incomplete picture of the record in this

case.    Giving the plaintiff the benefit of all reasonable inferences, the record

reflects ample evidence from which a jury could infer that Wexler was fired, not

because of poor performance, but on account of his age. The evidence suggests

that JPI, over the course of several years, set Wexler up for failure and terminated

him when he failed to meet largely ambiguous goals.

        I am guided by the principle that, under the McDonnell Douglas burden-

shifting framework, once an employer articulates a legitimate, nondiscriminatory

reason for an adverse employment action, the presumption of discrimination

created by the prima facie case simply drops out of the picture and the burden

shifts back to the employee to demonstrate that the proffered reason is a pretext for

discrimination. Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir.


                                            1
2013); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). At

the summary judgment stage, the employee can satisfy this burden by

“‘demonstrat[ing] ‘that there [is] a triable issue of fact material to the defendant’s

showing.’” Lawler, 704 F.3d at 1242 (quoting Dep’t of Fair Emp’t and Hous. v.

Lucent Techs., 642 F.3d 728, 746 (9th Cir. 2011)). Also, the evidence as to pretext

must be considered cumulatively. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115,

1127, 1129 (9th Cir. 2000). Further, summary judgment standards dictate that the

facts and inferences must be construed in favor of the nonmoving party and the

court may not weigh evidence or determine credibility. Glenn v. Washington Cty.,

673 F.3d 864, 870 (9th Cir. 2011) (“We review a district court's decision to grant

summary judgment de novo, considering all facts in dispute in the light most

favorable to the nonmoving party.”); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of

a judge, whether he is ruling on a motion for summary judgment or for a directed

verdict.”). In my view, the majority violates those precepts.

      First, I disagree with the majority’s finding that the district court recognized

the applicable McDonnell Douglas burden-shifting standard. My reading of the

district court opinion shows that the district court improperly collapsed the

objective qualifications for the job at stage one of the burden-shifting paradigm


                                          2
with subjective criteria and evidence that should be addressed at the third stage in

considering pretext.1 Doing so effectively “collapse[s] the three step analysis into

a single initial step at which all issues would be resolved and this would defeat the

purpose underlying the McDonnell Douglas process.” Lynn v. Regents of Univ. of

Cal., 656 F.2d 1337, 1344 (9th Cir. 1981); see also Nicholson v. Hyannis Air Serv.,

Inc., 580 F.3d 1116, 1124 (9th Cir. 2009) (noting the distinction turns on the

subjective or objective nature of the matter in question). I submit that the court

improperly collapsed the steps on the “competently performing” issue.

       I also disagree with the majority’s conclusion that Wexler’s evidence of age-

based animus is weak. Both the district court and the majority improperly discount

direct and circumstantial evidence of age bias. First, the record contains direct

evidence of discriminatory animus—age-related derogatory comments.                           The

majority acknowledges one example of an arguably negative age-related

comment—Plumley’s reputed statement that “older reps were the hardest reps to

train, were most challenging,” but there is other direct evidence of age bias in the

       1
          The district court found Wexler failed to establish a prima facie case because he could
not establish that he was performing competently in his position. I believe the district court
erred in that respect. In my view, Wexler presented evidence that satisfies the minimal standard
at the first step of the McDonnell Douglas paradigm. See Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th
317, 355 (2000) (noting that the plaintiff's prima facie burden is not onerous and requires a
showing that the plaintiff (1) was a member of a protected class, (2) was competently performing
in his position, (3) suffered an adverse employment action, and (4) some other circumstance
suggests discriminatory motive.). Wexler is in the protected class, he suffered an adverse action
in that he was terminated, he was objectively qualified for the position in that he had been doing
it for eleven years, he was meeting his sales quota, and direct and circumstantial evidence in the
record creates an inference of age bias. See id.
                                                3
record. In Wexler’s 2013 performance review, Plumley wrote that Wexler “had a

difficult time moving away from the traditional detail rep.” There is evidence that

Plumley also stated that Wexler was “slower than other reps” and “outdated.”

Wexler stated in his declaration that Plumley called him “oldie,” referred to him as

“the only real oldie” on the team and told Wexler he was outdated in his ways.

Wexler also reported that Plumley told Wexler “an oldie like you needs to get on

board with the new regime,” and that Wexler “was stuck in the dark ages.”

Notably, in his declaration, Plumley does not deny making the comments. That

evidence, together with other record evidence outlined below, could lead a

reasonable jury to conclude that JPI’s explanation for his termination is unworthy

of credence and that Wexler was, in fact, terminated because of his age.

      The majority states that “the only other arguably direct evidence of ageism is

that Plumley did not allow Wexler to lead the weekly conference calls[,]” finding

that fact “more reasonably explained on the basis that Wexler was not following

the new sales model.”      That statement amounts to blind acceptance of JPI’s

articulated reason for the termination as legitimate and credible, without

consideration of Wexler’s evidence that suggests the asserted reason is a pretext.

Wexler also presented corroborated evidence that Plumley belittled Wexler in

connection with the conference calls. These undisputed facts gain significance

because leading sales conference calls was something Wexler was supposed to


                                         4
have done as part of the showing of leadership under the Performance

Improvement Plan (“PIP”).

      I further disagree that the district court’s dismissal of the action was “based

on largely undisputed evidence” that Wexler was not performing competently. The

evidence on Wexler’s performance is disputed. Wexler presented evidence that he

was projected to meet and exceed his sales quota. The Invokana Radden Report

shows that of the seven-person team identified in the July 2014 Memo from

Plumley, there were four sales people who were not projected to meet their third

quarter quotas in 2014. Notably, none of those arguably poor performers were

placed on a PIP or terminated. That evidence suggests that there is at least a

genuine issue of material fact on whether Wexler’s performance was poor enough

to warrant the drastic sanction of termination.

      The majority’s acceptance of JPI’s articulated reason for terminating

Wexler’s employment—his poor performance and failure to adapt to a values

based sales model—without considering evidence in the record that calls JPI’s

assessment of his performance into doubt, eviscerates the third step of the

McDonnell-Douglas burden-shifting paradigm. Although the majority concedes

that “[r]easonable minds might differ on whether Wexler’s performance had

deteriorated to the point that his employment should have been terminated,” it

nonetheless finds “there is not sufficient evidence in this record to allow a jury to


                                          5
conclude that JPI terminated Wexler’s employment because of Plumley’s alleged

bias.” Respectfully, that is not the case.

       The majority fails to note that the poor performance rationale was based on

what appear to be largely subjective criteria.2 JPI did not show that Wexler’s

termination followed a validly and fairly devised and administered procedure

designed to serve a legitimate business purpose. See, e.g., Lucent Techs., 642 F.3d

at 745. The record shows inconsistencies and disputes on several facts that relate

to performance. Wexler testified that he enthusiastically embraced the values-

based sales model. His testimony is corroborated by the fact that JPI had moved to

the values-based model by 2011 and Wexler had worked under the new model for

several years, receiving numerous awards and prizes.                    Wexler states in his

declaration that he performed the actions required of him under the PIP and was on

course to achieve and exceed his quota by the end of the year. In response, JPI

submits only that Wexler’s quota was the lowest in the district. That fact is hardly

probative, since the company, after all, sets the quota. Wexler also states in his

declaration that “[a]t the end of the fourth Quarter of 2013, I finished at the top

20% of all sales representatives.” JPI’s response, states that at year-end, Wexler’s

       2
         The PIP, performance reviews, and even the values-based sales model are based on
subjective, ambiguous and jargon-laden factors. Wexler’s performance evaluations show
assessments of “impact” and “leadership” based on vague and subjective criteria such as
engaging with a doctor, focusing on benefits or exacting a commitment. “Key competencies”
are noted as “selling/customer development, thriving in ambiguity.” The goals of the PIP
included “strategic and consistent resource utilization” and required Wexler to “elevat[e] impact
on sales calls as measured by increased penetration and productivity with Invokana.”
                                                6
sales ranking was in the bottom ten percent of all JPI sales representatives

nationally. That fact does not necessarily refute Wexler’s showing, nor does it

address how Wexler performed vis-a-vis the other members of Plumley’s seven-

member team, or vis-a-vis Wexler’s own quota.

      Wexler also produced other highly probative evidence of discriminatory

motive. It is uncontested that he was terminated shortly before his 2011 and 2012

stock options were to have vested. Wexler’s counsel argues the timing of his

client’s loss but does not directly argue the economic repercussions. There is no

evidence concerning the stock option’s funding mechanism, nor the gain or loss to

either Wexler or JPI. Nonetheless, a jury could reasonably infer that JPI stood to

gain from preventing the vesting of one of their historically top performer’s stock

options and thereby had an incentive to build a case for his termination. Stock

options, by their nature, are designed to provide financial incentives to retain

employees and thus relate more to older employees. Viewed in the light most

favorable to the plaintiff, a reasonable jury could find the timing of Wexler’s

termination vis-à-vis the vesting of his stock options benefits would support a

finding of age-related animus.

      The majority also ignores facts that show the decline in sales could have

been due to factors other than Wexler’s alleged shortcomings in failing to adapt to

the new sales model. The record shows that JPI first changed Wexler’s territory


                                        7
from Beverly Hills (where he was a national top producer) to Chinatown and

Koreatown in 2013 as part of a purported realignment. Then JPI hired Mr. E.

Chang, a contract employee (age thirty-eight or thirty-nine at the time), and split

Wexler’s territory, awarding Chang half the accounts. Plumley made the decision

to transfer the accounts to Chang.3 Importantly, JPI also changed the products

Wexler was assigned to sell to newly-launched products—Invokana and Xarelto.

There is evidence in the record that sales of those products may have been

challenging under any sales model because the drugs may not have been covered

by Medicare or insurance.4 Chang was the employee who was hired to replace

Wexler after his termination.

       I submit that a jury presented with this timeline of facts and events, coupled

with evidence of Wexler’s supervisor’s age-related bias, could conclude that

Wexler’s termination was motivated by age discrimination.                     The issue is not

whether Wexler’s performance declined. Concededly, it did. The issue is whether

JPI fired Wexler not because of his poor performance but because of impermissible
       3
         With respect to the sales “void” left by the loss of half of Wexler’s accounts, JPI
presents the nonsensical explanation that Wexler was expected to call on his remaining accounts
twice as often to achieve his workload goal of 800 visits. How that would make up for lost sales
is not explained. It stands to reason that returning to the same accounts numerous times trying to
make the same sale may not be successful, and possibly could be counter-productive.

       4
         Common sense and life experience tell us that there may be many reasons other than
poor salesmanship for pharmaceutical sales to fall off—i.e., price, lack of coverage or failure to
be placed on an insurer’s formulary, inefficacy, or warnings of side effects. In contrast, during
the years Wexler was exceeding sales goals and winning awards, he was selling products widely
covered by insurance and his performance reviews were replete with references to the drugs
being on formularies and managed care plans.
                                                 8
age-related factors. The majority’s focus on Wexler’s decline in sales, rather than

reasons underlying the decline, is misplaced.

      Also, the majority’s reliance on other managers’ agreement that Wexler’s

performance was poor as causing his showing of pretext to “founder” is unavailing.

The record shows Plumley made the decisions to transfer Wexler’s accounts, to put

him on a PIP, and ultimately to terminate him. The other managers’ assessments

of Wexler’s performance and/or failure to improve under the PIP were based on

Plumley’s assessments and were elicited as part of Plumley’s subjective criteria in

the PIP. Although Wexler may have alleged that only Plumley demonstrated age

bias, it is undisputed that Plumley was the decision-maker on the adverse actions

taken against Wexler, and Plumley’s actions are, of course, imputed to the

company.           Interestingly, no corroborating documents or data accompany

JPI’s management’s declarations, although JPI is presumably in possession of the

human resources and sales records that would support its contentions. In a case of

this sort, involving a large corporate defendant, one would expect to see

documentary evidence of the plaintiff’s poor performance in comparison to other

employees’ performance data to support JPI’s poor performance rationale. There

is a dearth of evidence as to what Wexler’s or other employees’ sales quotas were.




                                         9
There is also unrefuted evidence that other, younger, employees were treated

differently than Wexler.5

       The district court’s and the majority’s apparent acceptance of the asserted

rationale that Wexler had difficulty adapting when JPI introduced a new sales

model fails to take account of the subjective nature of the new model and of

evidence that Wexler had, in fact, historically adapted to it. The evidence suggests

that Wexler’s decline in performance was equally likely due to other factors that

could show age bias such as changes to his territory and products, and the transfer

of his accounts to another, younger salesman. The record contains little objective

proof of what could amount to successful adaptation to the values-based model.

       The record shows a significant change in Wexler’s productivity came about

in the last quarters of 2012. That event coincided, not with the advent of the

values-based sales model, but with the appearance on the scene of an apparently

much younger sales manager with an arguable animus toward older people. There

       5
         Wexler stated in his declaration that several older people were fired “around or after his
termination,” naming one employee over sixty and three employees over forty. Again, JPI’s
evidence in response does not refute that statement, but shows only that the over-sixty
employee’s job ended after August 4, 2014, and the other three employees were still employed at
the end of 2014. The record also shows that other employees, Ms. Baghoumian and Ms.
Dittman, were disciplined less harshly than Wexler. Neither employee was put on a PIP or fired.
Co-worker Ms. Stears, a contract employee, states in her declaration that at the time Wexler was
terminated, another employee, Ms. Mast (age low thirties), had lower sales than Wexler and was
not disciplined or fired. To refute that evidence, JPI offers only that Mast “is the #1 Primary
Care representative in the Pacific region through April 2016 and the #5 Primary care
representative nationally,” but does not address her position at the time of Wexler’s PIP or
termination. Stears, who was forty-three at the time of her declaration, also stated that she
applied for a full-time position twice and each time Plumley hired a person under forty, although
Stears was a better performer than those individuals.
                                                10
is evidence from which a rational jury could find that the decline in Wexler’s

performance was due to circumstances set in motion by JPI in an effort to build a

case against him, terminate him, and to ensure the result that his termination would

appear justified. A jury could also infer that the fact that Wexler’s stock option

benefits would not vest would inure to the benefit of the corporation. These facts,

combined with the age-related negative comments, at the least create an issue of

fact on pretext.

       Respectfully, I suggest that the district court failed to view the evidence in

the light most favorable to Wexler and, in doing so, erroneously concluded that his

version of events did not create issues of fact that deserve a jury trial. For these

reasons I respectfully dissent, believing that there are genuine issues of material

fact that preclude summary judgment on Wexler’s age discrimination claim. I

would reverse the district court’s dismissal and remand the action to the district

court for trial.




                                         11
