                                                                            FILED
                              NOT FOR PUBLICATION                            JAN 06 2012

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



PHILIP LAWRENCE,                                  No. 10-55710

                Plaintiff - Appellant,            D.C. No. 5:08-cv-01073-WHS-OP

    v.
                                                  MEMORANDUM *
TURNER’S OUTDOORSMAN CORP.,

                Defendant - Appellee.



                     Appeal from the United States District Court
                         for the Central District of California
                 William H. Stafford, Senior District Judge, Presiding

                       Argued and Submitted December 9, 2011
                                Pasadena, California

Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**

         Philip Lawrence appeals the district court’s grant of summary judgment in

favor of his former employer, Turner’s Outdoorsman, Inc. (“Turner’s”), as to his

claims for race discrimination and harassment, retaliatory discharge, and wrongful


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
termination in violation of public policy under California’s Fair Employment and

Housing Act (“FEHA”), Cal. Gov’t Code §§ 12940-12996. Lawrence served as

Turner’s’ Loss Prevention Director from June 2002 through January 2006, when

he was terminated by Turner’s’ former President, Don Small.

      We review de novo the district court’s grant of summary judgment. Cline v.

Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1228 (9th

Cir. 2000). In evaluating both discrimination and retaliation claims under FEHA,

California looks to federal precedent governing analogous federal anti-

discrimination laws. See Guz v. Bechtel National, 24 Cal. 4th 317, 354 (2000).

      Applying the burden-shifting analysis under McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), we conclude that Lawrence presented sufficient

evidence to raise a triable issue of fact as to whether Small’s decision to fire him




                                           2
was pretextual.1 In the months prior to Lawrence’s termination, Small made a

series of racially charged comments deriding Lawrence and Turner’s’ only other

African-American manager. Small was also the sole decision-maker involved in

Lawrence’s termination. See Mondero v. Salt River Project, 400 F.3d 1207, 1213

(9th Cir. 2005). The fact that Small was the sole decision-maker involved in

Lawrence’s termination is therefore highly significant. In addition, Lawrence

offered sworn testimony that raises triable issues as to whether Turner’s’ stated

reasons for his termination—namely, his poor work performance, and Turner’s’

need to downsize—were unworthy of credence. For example, although Turner’s’

employees testified that Lawrence failed to answer his cell phone during the day,

and failed to respond to an alarm call on at least one occasion, Lawrence testified



      1
        In its brief and at oral argument, Turner’s construed Lawrence’s race
discrimination claim as a hostile work environment claim, and argued that
Lawrence failed to raise triable factual issues as to whether Small’s discriminatory
comments were so “sufficiently severe or pervasive [as] to alter the conditions of
[Lawrence’s] employment and create an abusive work environment.” Manatt v.
Bank of America, NA, 339 F.3d 792, 798 (9th Cir. 2003) (internal quotation marks
and citation omitted). Although Lawrence’s complaint pleads a claim for racial
discrimination and harassment, the complaint alleges only a violation of Cal. Gov’t
Code § 12940(a), which relates to race discrimination, and not § 12940(j), which
relates to racial harassment resulting in a hostile work environment. On appeal,
Lawrence does not contend that Small’s comments created a work environment
permeated by discrimination, but rather, that Small terminated him because of his
race. Because Lawrence has neither pled a hostile work environment claim nor
raised this issue on appeal, we need not address the merits of such a claim.

                                          3
that he consistently responded to phone calls and never missed an alarm call during

his tenure. Lawrence also testified that he observed Small make financial

decisions inconsistent with Turner’s’ assertion that it was experiencing financial

difficulties at the time of his termination. In light of the numerous disputed issues

of fact present in the record, the district court erred in granting summary judgment

in Turner’s’ favor as to Lawrence’s race discrimination claim. See Chuang v.

University of California Davis, Board of Trustees, 225 F.3d 1115, 1127-28 (9th

Cir. 2000).2

       Lawrence has failed to raise triable issues of fact as to his FEHA retaliation

claim, however. Lawrence adduced no evidence that Small was aware that he

discussed Small’s racially charged comments with Turner’s’ human resources

personnel. Lawrence declined to file a formal complaint, and stated that he did not

want Small to know that he found the comments offensive. There is no record



      2
        California law recognizes a claim for wrongful termination in violation of a
public policy reflected in a statute or constitutional provision. See Tameny v.
Atlantic Richfield Co., 27 Cal.3d 167, 172 (1980). Tameny claims supplement
FEHA claims alleging an improper termination due to race, age, disability, or
retaliation, and may be asserted in conjunction with such claims. See Ross v. San
Francisco Bay Area Rapid Transit Dist., 146 Cal.App.4th 1507, 1515 (2007).
Because Lawrence’s wrongful termination claim is based on the same facts as his
FEHA race discrimination claim, the district court erred in granting summary
judgment as to Lawrence’s wrongful termination claim. We therefore reverse the
court’s ruling on that claim.

                                           4
evidence that his wishes were ignored. Because Lawrence adduced no evidence of

a causal link between his conversation with human resources personnel and

Small’s decision to terminate him, he failed to establish a prima facie case of

retaliation. Cf. Hernandez v. Spacelabs Medical Inc., 343 F.3d 1107, 1113-14 (9th

Cir. 2003).

      The district court’s grant of summary judgment is AFFIRMED as to

Lawrence’s retaliation claim, and REVERSED AND REMANDED as to

Lawrence’s race discrimination and wrongful termination in violation of public

policy claims. The parties shall bear their own costs on appeal.




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