                                                                            FILED
                           NOT FOR PUBLICATION                              APR 21 2015

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



                            FOR THE NINTH CIRCUIT


GLENN LEATHERBURY,                               No. 12-17835

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01969-SI

  v.
                                                 MEMORANDUM*
C&H SUGAR COMPANY, INC., a
Delaware corporation and AMERICAN
SUGAR REFINING, INC., a Delaware
corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                       Argued and Submitted April 13, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and BENITEZ,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Glenn Leatherbury appeals the district court’s grant of summary judgment in

favor of his employer, C&H Sugar Company, Inc. and its parent company

American Sugar Refining, Inc., on his claims of failure to pay overtime in violation

of California Labor Code § 510, and for violations of the California Fair

Employment and Housing Act (“FEHA”), California Government Code § 12940 et

seq. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

1.    The district court did not err in concluding that Leatherbury was exempt

from California’s overtime wage requirements. See Cal. Labor Code §§ 510, 515.

First, the suggestions of supervisors (such as Leatherbury) were given “particular

weight” in making decisions to hire, fire, promote, and change the status of

employees. See In re United Parcel Serv. Wage & Hour Cases, 118 Cal. Rptr. 3d

834, 842 (Ct. App. 2010). Second, supervisors customarily and regularly exercised

their discretion and independent judgment. Leatherbury had the authority to

discipline union employees and to determine when someone would work overtime.

He also addressed complaints and concerns raised by union employees. These

decisions and choices were “matters of significance” that affected numerous

employees with respect to C&H’s business. Id. at 851-52. Lastly, supervisors like

Leatherbury “primarily engaged in duties that meet the test of the exemption.” Id.

at 842. Leatherbury defines much of his duties (such as keeping track of


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subordinates’ time and spot checking and examining the work of subordinates) as

“clerical.” Despite Leatherbury’s classification of his duties, much of that work

includes work done by exempt employees. See id. at 845-46; see also 29 C.F.R.

§ 541.703 (2008).

2.    Assuming that Leatherbury established his prima facie case of disability

discrimination, C&H adequately rebutted the resulting presumption of

discrimination by showing that it terminated Leatherbury for legitimate, non-

discriminatory reasons. Leatherbury has not identified pretext sufficient to create a

triable issue of fact material to C&H’s motivation in terminating him.

      Leatherbury “must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence . . . .” McRae v. Dep’t of Corr. & Rehab., 48 Cal. Rptr.

3d 313, 321 (Ct. App. 2006) (internal quotation marks omitted). Leatherbury

challenged C&H’s three proffered reasons for termination—(1) performing union

work, (2) interfering with union negotiations, and (3) poor performance in his new

position as a packing supervisor. However, Leatherbury’s challenges at best show

that C&H’s “decision was wrong, mistaken, or unwise.” Id. A wrong, mistaken,

or unwise decision is not enough to establish pretext. Id.


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3.    The district court did not err in concluding that Leatherbury failed to

establish a claim of race discrimination and retaliation. Leatherbury did not

establish a prima facie case of race discrimination or retaliation. The employee

who was the source of the alleged discrimination and retaliation was terminated

prior to Leatherbury’s transfer to Packing Supervisor and thereafter his termination

from C&H. There is no causal connection between the alleged discriminatory

conduct and his termination. Furthermore, even if Leatherbury established a prima

facie case, his claims would fail, because Leatherbury cannot establish that his

termination was pretextual for any type of discrimination.

4.    The district court did not err in concluding that C&H did not fail to

accommodate Leatherbury’s disability or engage in the interactive process. At

best, C&H was on notice of Leatherbury’s disability two days prior to his

termination. However, Leatherbury did not provide C&H a list of restrictions or

request an accommodation. See King v. United Parcel Serv., Inc., 60 Cal. Rptr. 3d

359, 374 (Ct. App. 2007). In fact, the medical doctor at C&H released Leatherbury

to work without any restrictions. Based on this evidence, Leatherbury failed to

present an issue of material fact that C&H failed to accommodate his disability

prior to his termination.




                                          4
5.    Because Leatherbury failed to raise triable issues of fact with respect to his

FEHA claims, his wrongful termination claim must also fail.

      AFFIRMED.




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