                                                                              FILED
                           NOT FOR PUBLICATION                                APR 19 2013

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



                            FOR THE NINTH CIRCUIT


DAVID CALDERON, an individual,                   No. 11-56299

              Plaintiff - Appellant,             D.C. No. 2:10-cv-04896-R-PJW

  v.
                                                 MEMORANDUM*
SHELL PIPELINE COMPANY, L.P.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted April 11, 2013
                              Pasadena, California

Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.

       Plaintiff-Appellant David Calderon appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee Shell Pipeline Company, L.P.,

on Calderon’s claims of national origin discrimination, age discrimination, and

retaliation, in violation of California’s Fair Employment and Housing Act. We



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reverse and remand the district court’s grant of summary judgment on Calderon’s

retaliatory failure-to-hire claim. We affirm the district court in all other respects.

      Applying the burden-shifting framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the district court did not err in granting

summary judgment on Calderon’s age and national origin discrimination claims.

Shell adequately rebutted Calderon’s prima facie case of discrimination by

showing that Calderon’s position was non-essential and was eliminated pursuant to

a global reduction-in-force. Calderon’s statistical evidence regarding the protected

characteristics of the individuals terminated at the Carson facility is insufficient to

support an inference of pretext. See Coleman v. Quaker Oats Co., 232 F.3d 1271,

1283 (9th Cir. 2000).

      However, the district court erred in granting summary judgment on

Calderon’s retaliation claim based on a failure-to-hire theory. See Walker v. City

of Lakewood, 272 F.3d 1114, 1126 (9th Cir. 2001). Calderon has shown that he

filed his internal complaint about a month before interviewing for the Van Nuys

and Signal Hill Terminal Operator positions. A causal link between Calderon’s

protected complaint and Shell’s decision not to hire him may be established “by an

inference derived from circumstantial evidence, such as [Shell’s] knowledge that

[Calderon] engaged in protected activities and the proximity in time between the


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protected action and allegedly retaliatory employment decision.” Morgan v.

Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000) (citations and internal

quotation marks omitted). “Essential to a causal link is evidence that [Shell] was

aware that [Calderon] had engaged in the protected activity.” Id. at 70 (citations

and internal quotation marks omitted). Calderon has raised specific and substantial

evidence of pretext based on the inconsistent testimony of Larry Yates and Karen

Shahan regarding Yates’ knowledge of Calderon’s complaint. This evidence,

combined with evidence that one of the candidates selected may have been no

more qualified for the position than Calderon—both had relevant prior experience

and needed to be trained as new hires—may permit a fact-finder to conclude that

Calderon was not chosen for the position in retaliation for filing his internal

complaint.

      The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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