                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 24 2013

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



                            FOR THE NINTH CIRCUIT


GILBERT PALMER, Sr., an individual,              No. 12-56231

              Plaintiff - Appellant,             D.C. No. 2:11-cv-07396-PA-E

  v.
                                                 MEMORANDUM*
HUHTAMAKI, INC., a corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                            Submitted April 11, 2013**
                               Pasadena, California

Before: RAWLINSON and BYBEE, Circuit Judges, and SIMON, District Judge.***

       Gilbert Palmer appeals from the district court’s summary judgment in favor

of Palmer’s former employer, Huhtamaki, Inc., on Palmer’s claims of (1)

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.
discrimination under California’s Fair Employment and Housing Act (FEHA), Cal

Gov’t Code § 12940(a), and (2) breach of an implied contract that Huhtamaki

would terminate Palmer only for good cause. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      California applies the framework established by McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), to FEHA discrimination claims. Earl v. Nielsen

Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). “Although

intermediate evidentiary burdens shift back and forth under this framework, the

ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation

marks and alteration omitted). Palmer has failed to carry that burden. At most, he

has offered evidence calling into question Huhtamaki’s proffered

nondiscriminatory reason for forcing him to retire, but anti-discrimination laws

“do[ ] not award damages against employers who cannot prove a

nondiscriminatory reason for adverse employment action, but only against

employers who are proven to have taken adverse employment action by reason of

[an employee’s membership in a protected class].” St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 523–24 (1993).


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      Palmer’s implied-contract claim fails for three distinct reasons. First, under

California law, where there is an at-will provision in an “express written

agreement, signed by the employee,” that at-will provision “cannot be overcome

by proof of an implied contrary understanding.” Starzynski v. Capital Public

Radio, Inc., 105 Cal Rptr. 2d 525, 528 (Ct. App. 2001) (emphasis omitted). The

receipt Palmer signed acknowledging he had received the Huhtamaki employee

handbook was an express written agreement containing an at-will provision, see id.

at 527, so Palmer cannot successfully claim to have an implied contract that he

could only be terminated for good cause. The at-will provision allowed

Huhtamaki’s Chief Executive Officer to enter into agreements for employment that

was not at will, but Palmer does not allege any such agreement with the Chief

Executive Officer. See id. at 529.

      Second, even if Palmer’s signed acknowledgment were not dispositive,

Palmer has not offered sufficient evidence of an implied contract to overcome the

at-will provision found in the Huhtamaki employee handbook. See Guz v. Bechtel

Nat’l, Inc., 8 P.3d 1089, 1100–09 (Cal. 2000).

      Finally, even if there was an implied contract that termination would only be

for good cause, Huhtamaki had good cause to terminate Palmer for his violation of

company policy. See Cotran v. Rollins Hudig Hall Int’l, Inc., 948 P.2d 412, 417,


                                          3
422 (Cal. 1998); Silva v. Lucky Stores, Inc., 76 Cal. Rptr. 2d 382, 387, 394–95 (Ct.

App. 1998).

      AFFIRMED.




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