                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           JAN 10 2017
                     UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


LOUIS W. JEFFERSON,                              No. 14-56189

               Plaintiff - Appellant,            D.C. No. 2:13-cv-04453-PSG-SS

 v.
                                                 MEMORANDUM*
THE BOEING COMPANY,

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                         Argued and Submitted June 9, 2016
                               Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and EATON, Judge.**

      Appellant Louis W. Jefferson (Jefferson) appeals a district court order

granting summary judgment in favor of Appellee The Boeing Company (Boeing).

Appellant contends the district court improperly excluded evidence that would


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
              Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
have raised genuine factual disputes as to his age and retaliatory discrimination

claims under the California Fair Employment and Housing Act (FEHA), Cal.

Gov’t Code § 12900 et seq., as well as his claims under California tort law for

intentional and negligent infliction of emotional distress. Appellant insists this

evidence demonstrates he was reclassified into an incorrect job category in 2009

because of his age, and this misclassification led to his layoff in 2011.

      California courts have adopted the three-step burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate FEHA

claims. See Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012). Under

that framework, Jefferson must first establish a prima facie case of age

discrimination. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir.

2000). If he does so, the burden of production shifts to Boeing to rebut Jefferson’s

prima facie case by articulating a legitimate, non-discriminatory reason for its

challenged employment actions. Id. at 1123–24. If rebutted, the burden shifts

back to Jefferson to show that Boeing’s reasons were pretextual, and the true

reason for its actions was unlawful discrimination. Id. at 1124.

      Appellant met his “minimal” burden of establishing a prima facie case of age

discrimination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).

Boeing, in turn, rebutted Jefferson’s prima facie case by articulating legitimate,


                                     Page 2 of 7
non-discriminatory reasons for the challenged employment actions. Boeing

offered evidence that the reclassification resulted from the reasoned deliberations

of its Human Resources Department and several Boeing managers, who were

indisputably uncertain as to Jefferson’s correct job classification, as demonstrated

by emails offered by Jefferson. As to his later termination, there is no dispute that

Jefferson’s layoff was part of a company-wide reduction-in-force (RIF), that the

RIF itself was conducted in an age-neutral manner, and that Jefferson was not

replaced once terminated as his position was eliminated entirely.

      Appellant fails to demonstrate that Boeing’s proffered legitimate,

non-discriminatory reasons were “pretextual ‘either directly by persuading the

court that a discriminatory reason more likely motivated the employer or indirectly

by showing that the employer’s proffered explanation is unworthy of credence.’”

Chuang, 225 F.3d at 1124 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450




                                     Page 3 of 7
U.S. 248, 256 (1981)). Even accepting Jefferson’s evidence as true,1 it only shows

that he disagreed with his employer about his proper job classification, but does

not show Boeing’s reason for the reclassification was pretextual. See Guz v.

Bechtel Nat’l Inc., 8 P.3d 1089, 1115 (Cal. 2000) (“[An employer’s] true reasons

[for an employment action] need not necessarily have been wise or correct. While

the objective soundness of an employer’s proffered reasons supports their

credibility . . . , the ultimate issue is simply whether the employer acted with a

motive to discriminate illegally.” (citations omitted)).

      1
              We note that the district court did commit legal error in deeming
inadmissible Jefferson’s evidence about Arechiga’s and Czopek’s alleged
statements, both of which were plainly admissible as admissions of party agents
under Federal Rule of Evidence 801(d)(2). Similarly, Jefferson’s testimony that 90
percent of his job obligations were engineering-related, which was based on his
personal knowledge of his daily activities, was admissible. See Nigro v. Sears,
Roebuck & Co., 784 F.3d 495, 497–98 (9th Cir. 2015) (a plaintiff’s testimony may
be rejected as “self-serving” and “uncorroborated” when it states mere
“conclusions and not facts that would be admissible evidence”; but where evidence
is “based on personal knowledge, legally relevant, and internally consistent,” the
fact that the plaintiff’s testimony is self-serving or uncorroborated goes to its
weight, not its admissibility). Nevertheless, Czopek’s statement and Jefferson’s
testimony do not create a triable issue of fact; they merely affirm that Jefferson’s
job obligations did not fit well into any job classification, and that Jefferson and
Boeing disagreed about which classification best characterized Jefferson’s
“unique” tasks. That does not tend to show that Boeing’s proffered age-neutral
reasons were mere pretext. Evidence of Arechiga’s 2008 statement cannot alone
create a triable issue of fact on step three of the McDonnell Douglas framework,
because the significant time lapse between the statement and Jefferson’s
reclassification (almost one year) and termination (over three years) negates a
reasonable inference of causation.

                                     Page 4 of 7
      Jefferson’s argument that his misclassification, from a Systems Engineer to a

Government Property Specialist, put him at a higher risk for layoff because he was

evaluated against other Government Property Specialists, who performed different

work than Jefferson, also fails. The evidence shows the RIF was not limited to

Government Property Specialists, but also extended to Systems Engineers; 16

Government Property Specialists were laid off, while 366 Systems Engineers were

terminated. Even if Jefferson had not been reclassified, the RIF process would

have reached his previous job classification.2

      Jefferson also fails to cast doubt on Boeing’s claim that his termination was

part of a company-wide, age-neutral RIF. Appellant offered statistical evidence

showing that Boeing hired many junior and mid-level employees for engineering

positions around the time of Jefferson’s termination. But Jefferson fails to offer



      2
               While age discrimination claims brought pursuant to the Age
Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, 81 Stat. 602
(1967) (codified at 29 U.S.C. § 621 et seq.), are analyzed to determine “whether
the employee would not have been discharged ‘but for’ his age,” Cassino v.
Reichhold Chems., Inc., 817 F.2d 1338, 1343–44 (9th Cir. 1987), this Court has
held that “[t]he FEHA’s express purpose of ‘provid[ing] effective remedies that
will . . . prevent and deter unlawful employment practices’ suggests that section
12940(a)’s prohibition on discrimination is not limited to instances where
discrimination is a ‘but for’ cause of the employment decision.” Harris v. City of
Santa Monica, 294 P.3d 49, 64 (Cal. 2013) (quoting Cal. Gov’t Code § 12920.5).
Nonetheless, it is notable that Jefferson’s claim also fails to meet the ADEA’s
stricter standard.

                                     Page 5 of 7
any evidence that those employees were hired to replace Jefferson (formerly a

senior-level systems engineer) or that the new employees performed any of the

same tasks as the more senior-level engineers who were laid off. Without such

evidence, these statistics fail to demonstrate a “stark pattern of discrimination

unexplainable on grounds other than age.” Palmer v. United States, 794 F.2d 534,

539 (9th Cir. 1986) (internal quotation marks and citation omitted). Indeed, that

Boeing was hiring a large number of entry-level engineers does not create a

genuine factual dispute as to whether Boeing’s proffered reasons for its

employment actions were “pretext[s] for unlawful discrimination.” See Lawler v.

Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013).

      As to Jefferson’s second claim of retaliatory discrimination, he made a

showing that he engaged in a protected activity by pointing to a comment he

allegedly made to his supervisor in 2009 after his reclassification, but failed to

show this comment was related to his termination two years later, particularly

given the temporal gap. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274

(2001) (“Action taken . . . 20 months later suggests, by itself, no causality at all.”);

Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (“While courts may

infer causation based on the proximity in time between the protected action and the

allegedly retaliatory employment decision, such an inference is not possible in this


                                      Page 6 of 7
case because approximately nine months lapsed between the date of [the]

complaint and the . . . alleged adverse decisions.” (internal quotation marks and

citations omitted)).

      Finally, as to Jefferson’s derivative tort claims, the California Workers’

Compensation scheme is the sole and exclusive remedy for employees against

employers for injuries arising during the course of employment, unless an

employer’s conduct violates a statute or fundamental public policy. See Miklosy v.

Regents of Univ. of Cal., 188 P.3d 629, 645–46 (Cal. 2008). Having failed to raise

a genuine dispute with respect to his FEHA claims, Jefferson’s derivative tort

claims are preempted by the California Workers’ Compensation Law. See Cal.

Lab. Code § 3602(a).

      AFFIRMED.




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