                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID COUCH,                                     No.   15-16749

              Plaintiff-Appellant,               D.C. No. 1:14 cv-00010-LJO-JLT

 v.
                                                 MEMORANDUM*
MORGAN STANLEY & CO. INC.;
MORGAN STANLEY SMITH BARNEY,
LLC,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Lawrence J. O’Neill, Chief District Judge, Presiding

                        Argued and Submitted June 17, 2016
                             San Francisco, California

Before:       SCHROEDER, TASHIMA, and OWENS, Circuit Judges.

      David Couch appeals the district court’s order granting summary judgment

to Morgan Stanley & Co. Inc. and Morgan Stanley Smith Barney, LLC (together,

“Morgan Stanley”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      From September 2007 to January 2013, Couch was employed as a Morgan

Stanley Financial Advisor (“FA”), a position that Morgan Stanley treats as full-

time. Morgan Stanley employees may not engage in certain activities outside the

scope of their employment, including serving on a municipal board, without prior

written approval. Before Couch began working at Morgan Stanley, Morgan

Stanley approved Couch’s outside activity request to “run[ ] for and potentially

serv[e]” on the Kern County Board of Supervisors (the “Board”).

      In 2011, Couch began campaigning to be elected to the Board. In February

2012, Couch submitted a formal outside activity request to serve on the Board,

which stated that the Supervisor position paid $100,000 a year and required 35

hours per week, 25 of them during business hours. Couch’s request triggered

concerns by Morgan Stanley’s Human Resources and Legal Departments that

Couch would be unable to devote sufficient time to his clients as an FA and that

there might be a conflict of interest between Morgan Stanley and Kern County, a

Morgan Stanley client.

      Couch was elected to the Board on June 6, 2012. One month before Couch

was to be sworn in, Morgan Stanley informed Couch that he needed to choose

between the FA and Board positions. In late December 2012, Couch indicated that

he would remain as an FA with Morgan Stanley. However, less than two weeks


                                          2
later, Couch was sworn in as a Supervisor. Upon learning that Couch had taken

the elected position, Morgan Stanley reiterated that Couch could not maintain both

jobs. After Couch failed to indicate whether he would step down from either

position, Morgan Stanley terminated Couch’s employment in January 2013.

      Couch sued Morgan Stanley for violations of California Labor Code §§ 98.6,

1101(a), and 1102, and for intentional and negligent interference with existing and

prospective economic relationships. Morgan Stanley moved for summary

judgment, and the district court granted the motion. Couch appealed.

      We review de novo a district court’s grant of summary judgment. Lopez v.

Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We must “determine

whether, viewing the evidence in the light most favorable to the nonmoving party,

there are any genuine issues of material fact and whether the district court correctly

applied the relevant substantive law.” Id. (citation omitted).

      Sections 1101 and 1102 of the California Labor Code prohibit employers

from interfering with “the fundamental right of employees in general to engage in

political activity.” Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., 595 P.2d 592,

610 (Cal. 1979) (citations omitted). The parties dispute whether an employer

violates §§ 1101(a) and 1102 by firing an employee who engages in political

activity, regardless of the employer’s motivation, or only if the employer had a


                                          3
political reason for terminating the employee.1 Where, as here, the state supreme

court has not squarely addressed the issue of state law, “a federal court is obligated

to follow the decisions of the state’s intermediate appellate courts” unless there is

“convincing evidence that the state supreme court would decide [the issue]

differently.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th Cir. 2007)

(citation omitted).

      Two California Court of Appeal decisions have held that liability under §§

1101(a) and 1102 is triggered only if an employer fires an employee based on a

political motive. In Ali v. L.A. Focus Publ’n, 5 Cal. Rptr. 3d 791 (Ct. App. 2003),

the court reversed the grant of summary judgment to a newspaper that fired its

editor after he criticized a congresswoman on a local radio show. Id. at 793, 799.

The court explained that §§ 1101 and 1102 reflect “[t]he public policy prohibiting

employers from terminating an employee for engaging in political activity.” Id. at



      1
              Section 1101(titled “Political activities of employees; prohibition of
prevention or control by employer”) states in part, “No employer shall make,
adopt, or enforce any rule, regulation, or policy [f]orbidding or preventing
employees from engaging or participating in politics or from becoming candidates
for public office.” Cal. Labor Code § 1101(a). Section 1102 (titled “Coercion or
influence of political activities of employees”) states, “No employer shall coerce or
influence or attempt to coerce or influence his employees through or by means of
threat of discharge or loss of employment to adopt or follow or refrain from
adopting or following any particular course or line of political action or political
activity.” Cal. Labor Code § 1102.
                                           4
798. Because the editor alleged he was fired “not because the content of his

articles contravened the editorial policies or standards of the newspaper, but

because outside of the workplace he publicly criticized an influential public

official” the court concluded that it was error to grant summary judgment to the

employer. Id. at 799. Similarly, in an unpublished decision, the Court of Appeal

held that an employer violates §§ 1101 and 1102 only if it terminates an employee

for a political reason, as opposed to a legitimate non-political reason. Nava v.

Safeway Inc., No. F063775, 2013 WL 3961328, at *7-8, (Cal. Ct. App. Jul. 31,

2013) (unpublished) (holding that a former Safeway employee, who claimed he

was fired for objecting to Safeway’s political agenda by removing a “Gay/Lesbian

Pride Month” poster from the break room, adequately alleged violations of §§ 1101

and 1102).2

      The district court thus correctly granted summary judgment to Morgan

Stanley on Couch’s claims under §§ 1101(a) and 1102. Even viewing the facts in

the light most favorable to Couch, Morgan Stanley fired Couch for a legitimate,

apolitical reason: Couch could not work as both a full-time FA and a full-time



      2
            We “may consider unpublished state decisions, even though such
opinions have no precedential value.” Emp’rs Ins. of Wausau v. Granite State Ins.
Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003) (citing Nunez v. City of San Diego,
114 F.3d 935, 943 n.4 (9th Cir. 1997)).
                                          5
Supervisor. The Supervisor position was a full-time position that required 25

hours per week during business hours and another 10 hours outside of business

hours. Morgan Stanley likewise treats the FA position as a full-time position.

Couch’s observation that some FAs work from home or that no one monitored

whether Couch was in the office does not negate the fact that the FA position was

considered full-time or that Morgan Stanley did not believe Couch could devote

sufficient time to his clients while simultaneously employed as a full-time

Supervisor.

       Because Morgan Stanley fired Couch for a legitimate, non-political reason,

the district court did not err in granting summary judgment to Morgan Stanley on

Couch’s claims under §§ 1101(a) and 1102. Further, because Couch’s tortious

interference claims and § 98.6 claim are based on Morgan Stanley’s alleged

violation of §§ 1101(a) and 1102, the district court also correctly granted summary

judgment to Morgan Stanley on those derivative claims.

      AFFIRMED.




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