                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 07 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARIO CARLOS,                                    No.   16-55893

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-06127-MWF-MRW
 v.

OLD DOMINION FREIGHT LINE, INC.,                 MEMORANDUM*
a Virginia corporation,

              Defendant-Appellee,

 and

DOES, 1 through 250, inclusive,

              Defendant.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                     Argued and Submitted February 12, 2018
                              Pasadena, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District
Judge.

      Mario Carlos sued his former employer, Old Dominion Freight Line, Inc.

(Old Dominion), for age discrimination and related wrongs stemming from his

firing in 2014. The district court granted summary judgment to Old Dominion on

all four claims. We affirm.

      1. Age discrimination claims under California’s Fair Employment and

Housing Act (FEHA) are analyzed under the McDonnell Douglas burden-shifting

framework. See Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (Cal. 2000). As an

element of his prima facie case—the first step of the framework—Carlos had to

show he was “either replaced by substantially younger employees with equal or

inferior qualifications or discharged under circumstances otherwise giving rise to

an inference of discrimination.” Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139,

1146 (9th Cir. 2017) (internal quotation marks omitted). He did not so

demonstrate.

      Old Dominion submitted a declaration showing that (1) the driver who took

over Carlos’s route was two years younger than Carlos and (2) the next driver Old

Dominion hired was four years older than him. Regardless of which of those two


      **
               The Honorable John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.
                                          2
drivers “replaced” Carlos, that driver was not “substantially” younger than Carlos.

See France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015) (holding that “an age

difference of less than ten years will be presumptively insubstantial” for making

out a prima facie case of age discrimination).

      The only evidence Carlos put forward to dispute Old Dominion’s declaration

was his personal observation that around the time he was fired, Old Dominion

hired some younger drivers in their 30s. Even assuming that Carlos’s subjective

impression were accurate—and Old Dominion’s demographic evidence suggests it

was not—it does not contradict Old Dominion’s evidence that Carlos was not

“replaced by [a] substantially younger employee[].” Merrick, 867 F.3d at 1146.

      Because Carlos failed to create a genuine issue of material fact as to an

element of his prima facie case of age discrimination, summary judgment was

proper.1 Breitman v. May Co. California, 37 F.3d 562, 565 (9th Cir. 1994).

      2. The district court properly granted summary judgment to Old Dominion

as to Carlos’s claim of retaliation under FEHA. FEHA forbids employers from

firing an employee “because the person has opposed any practices forbidden under


      1
        As Carlos did not show that his termination occurred during a reduction in
workforce, he may not—nor would he be able to—establish a prima facie case by
demonstrating he was “discharged under circumstances otherwise giving rise to an
inference of discrimination.” Merrick, 867 F.3d at 1146; Diaz v. Eagle Produce
Ltd. P’ship, 521 F.3d 1201, 1207 n.2 (9th Cir. 2008).
                                          3
[FEHA].” Cal. Gov’t Code § 12940(h). To establish a prima facie case of

retaliation, a plaintiff must introduce evidence showing that he engaged in

protected activity by opposing a practice forbidden under FEHA. Yanowitz v.

L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (Cal. 2005).

      Carlos failed to create a genuine issue of material fact regarding whether he

engaged in protected activity. The record evidence, and Carlos’s own deposition

testimony, establish that he did not raise the issue of age discrimination until he

emailed the chief executive officer (CEO) of Old Dominion two weeks after he

was fired.

      Carlos’s earlier communications and complaints did not put Old Dominion

on notice of his opposition to any forbidden practices. His 2013 letter to the CEO,

sent while he was still employed, alluded to mistreatment he and other drivers

allegedly suffered at the hands of Old Dominion management. The letter accused

Carlos’s managers of attempting to force Carlos to resign for driving outside of his

route—which Carlos denied—and stated that Carlos believed other drivers were

fired in the past for complaining about management. But nothing Carlos wrote in

the letter complained about age discrimination or any other “practice[] forbidden”

under FEHA. Cal. Gov’t Code § 12940(h). A plaintiff fails to make out a prima

facie case of retaliation “where there is no evidence the employer knew that the


                                           4
employee’s opposition was based upon a reasonable belief that the employer was

engaging in discrimination.” Yanowitz, 36 Cal. 4th at 1046.

      3. Carlos’s common-law tort claim for wrongful discharge in violation of

public policy was predicated on his unmeritorious claims of age discrimination and

retaliation. “Under California law, if an employer did not violate FEHA, the

employee’s claim for wrongful termination in violation of public policy necessarily

fails.” Featherstone v. S. Cal. Permanente Med. Grp., 10 Cal. App. 5th 1150, 1169

(Cal. Ct. App. 2017) (citing Esberg v. Union Oil Co., 28 Cal. 4th 262, 272–73 (Cal.

2002)). Accordingly, the district court properly dismissed Carlos’s wrongful

termination claim.

      4. In California, the exclusive remedy for disability arising “in the normal

course of the employer-employee relationship” is workers’ compensation. See

Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 902 (Cal. 2008); Cal. Lab.

Code § 3602(a). Where a tort claim is alleged, a plaintiff alleging disability

stemming from incidents “such as demotions, promotions, criticism of work

practices, and frictions in negotiations as to grievances, . . . may not avoid the

exclusive remedy provisions of the Labor Code,” even if the employer’s actions

were “manifestly unfair, outrageous, harassment, or intended to cause emotional




                                           5
disturbance resulting in disability.” Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d

148, 160 (1987).

      Carlos pleaded a claim of intentional infliction of emotional distress (IIED)

based on his allegedly discriminatory termination and his managers’ criticism and

unfair treatment of him. Because those employment actions are “a normal part of

the employment relationship,” and the workers’ compensation bargain

encompasses disability arising from such actions, id., Carlos’s IIED claim was

barred.

      The judgment of the district court is AFFIRMED.




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