                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 15 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

MICHAEL N. OKAFOR,                               No. 18-55238

              Plaintiff-Appellant,               D.C. No.
                                                 8:15-cv-01626-CJC-JCG
 v.

STATE OF CALIFORNIA                              MEMORANDUM*
DEPARTMENT OF CONSERVATION,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                      Argued and Submitted August 12, 2019
                              Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and WATSON,** District
Judge.

      Plaintiff Michael Okafor appeals the summary judgment entered in favor of

Defendant, the California Department of Conservation, on his employment

discrimination and retaliation claims. Reviewing de novo, and viewing the

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Michael H. Watson, United States District Judge for the
Southern District of Ohio, sitting by designation.
evidence in the light most favorable to Plaintiff, Albino v. Baca, 747 F.3d 1162,

1168 (9th Cir. 2014) (en banc), we affirm.

      1. The district court did not err by considering declarations that Defendant

provided to supplement the deposition testimony of its Federal Rule of Civil

Procedure 30(b)(6) designee. Plaintiff focused on one statement from that

deposition, taken out of context, to argue that the declarations contradicted

Defendant’s purported admission that it had no criteria for selecting employees to

participate in the training from which Plaintiff was excluded. But, considering the

deposition as a whole, the declarations merely clarified the designee’s testimony

about the various factors that might affect which employees attended training.

Although an entity defendant may not defeat a motion for summary judgment by

submitting an affidavit that conflicts with its Rule 30(b)(6) deposition, that general

rule "applies only where the purportedly conflicting evidence truly, and without

good reason or explanation, is in conflict, i.e., where it cannot be deemed as

clarifying or simply providing full context for the Rule 30(b)(6) deposition."

Snapp v. United Transp. Union, 889 F.3d 1088, 1103 (9th Cir. 2018), cert. denied,

139 S. Ct. 817 (2019).

      2. The district court correctly granted summary judgment to Defendant on

Plaintiff’s discrimination and retaliation claims under Title VII of the Civil Rights


                                           2
Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and the California Fair Employment

and Housing Act ("FEHA"), Cal. Gov’t Code §§ 12900–12996. Even assuming

that Plaintiff made out a prima facie case, his claims fail because he offered no

evidence that created a genuine issue of material fact as to whether Defendant’s

legitimate, nondiscriminatory reasons for its actions were pretextual. Mayes v.

WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017); see Guz v. Bechtel

Nat’l, Inc., 8 P.3d 1089, 1113–14 (Cal. 2000) (recognizing that the burden-shifting

framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies

to discrimination claims under FEHA).

      We are unpersuaded by Plaintiff’s contention at oral argument that he had no

opportunity to respond to the supplemental declarations. The additional fact

witnesses who provided declarations were disclosed during the Rule 30(b)(6)

deposition, but Plaintiff did not depose those witnesses, obtain any declarations

except his own, or seek additional time to conduct further discovery. Whatever the

reason for Plaintiff’s failure, he simply did not present any evidence of pretext.

      3. Likewise, the district court correctly granted summary judgment to

Defendant on Plaintiff’s FEHA claim for "failure to prevent discrimination." An

employer cannot face liability for failing to prevent discrimination when no




                                           3
actionable discrimination occurred. Featherstone v. S. Cal. Permanente Med. Grp.,

217 Cal. Rptr. 3d 258, 272–73 (Ct. App. 2017).

      AFFIRMED.




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