                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 23 2011

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



                           FOR THE NINTH CIRCUIT

STEPHEN VALLIMONT,                               No. 09-17485

             Plaintiff - Appellant,              D.C. No. 3:08-cv-01227-JSW

  v.
                                                 MEMORANDUM*
CHEVRON ENERGY TECHNOLOGY
COMPANY,

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                     Argued and Submitted, February 15, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TALLMAN and CALLAHAN**, Circuit Judges, and TARNOW***, Senior
District Judge.

      Stephen Vallimont appeals the district court’s grant of summary judgment in

favor of his former employer, Chevron Energy Technology Company, on claims

that he was wrongly terminated in violation of public policy and on the basis of

reverse racial and gender discrimination under Title VII of the 1964 Civil Rights

Act, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing

Act (FEHA), Cal. Gov’t Code § 12940 et seq. Vallimont also appeals the district

court’s grant of summary judgment to Chevron on his claim that he was retaliated

against in violation of the aforementioned laws. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

       This court has found that:

            [a] plaintiff alleging disparate treatment under Title VII must first
            establish a prima facie case of discrimination by offering evidence
            that give[s] rise to an inference of unlawful discrimination. A plaintiff
            may establish a prima facie case either by meeting the four-part test

      **
             Due to the death of the Honorable David R. Thompson, the Honorable
Consuelo M. Callahan, United States Circuit Judge for the Ninth Circuit, has been
drawn to replace him on this panel. Judge Callahan has read the briefs, reviewed
the record, and listened to the audio recording of oral argument held on February
15, 2011.
      ***
             The Honorable Arthur J. Tarnow, Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.


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             laid out in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93
             S. Ct. 1817, 36 L. Ed.2d 668 (1973), or by providing direct evidence
             suggesting that the employment decision was based on an
             impermissible criterion.

EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (citations and internal

quotation marks omitted).

      To establish a prima facie case under the four-part test, a plaintiff must

demonstrate: “that (1) he belongs to a protected class; (2) he was qualified for the

position; (3) he was subject to an adverse employment action; and (4) similarly

situated individuals outside his protected class were treated more favorably.”

Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000).

      After a plaintiff establishes a prima facie case:

             [t]he burden of production, but not persuasion, then shifts to the
             employer to articulate some legitimate, nondiscriminatory reason for
             the challenged action. If the employer does so, the plaintiff must then
             show that the articulated reason is pretextual either directly by
             persuading the [fact-finder] that a discriminatory reason more likely
             motivated the employer or indirectly by showing that the employer’s
             proffered explanation is unworthy of credence. When the evidence is
             direct, we require very little evidence to survive summary judgment in
             a discrimination case. But when the plaintiff relies on circumstantial
             evidence, that evidence must be specific and substantial to defeat the
             employer’s motion for summary judgment.

EEOC, 577 F.3d at 1049 (citations and internal quotation marks omitted).




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      California courts also apply the Title VII burden shifting analysis in

analyzing state discrimination claims under FEHA. See Metoyer v. Chassman, 504

F.3d 919, 941 (9th Cir. 2007) (citing Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354

(Cal. 2000)).

      The district court properly granted summary judgment in favor of Chevron

on Vallimont’s reverse racial and gender discrimination claims under Title VII and

FEHA. Even assuming arguendo that Vallimont established a prima facie case of

discrimination, Chevron articulated a legitimate, nondiscriminatory reason for its

decision to terminate him. Jeffrey Hedges, the division manager, made the

decision to terminate Vallimont based on findings of misconduct that violated

Chevron’s equal employment and anti-harassment policies. These findings were

based on an investigation done by Kathryn Gallacher, an employee relations

counselor at Chevron who had previously performed close to one hundred

investigations and had never met Vallimont, the workers interviewed, or any of the

management employees prior to the investigation.

      The district court properly determined that Vallimont failed to raise

questions of fact regarding pretext. Vallimont has not demonstrated that other

similarly situated employees were treated more favorably, as he has not identified

any other worker who “amassed a record of misconduct comparable to” his own.


                                         4
See Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). Additionally, the record

does not establish that Hedges played a large role in Gallacher’s investigation and

improperly attempted to sway her findings. Rather, Gallacher ran the investigation

without attempts by Hedges to bias the outcome. Moreover, even if Gallacher’s

investigation were flawed, the record is void of any indication that Hedges lacked a

sincere belief in her findings. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1063 (9th Cir. 2002).

      Furthermore, we affirm the district court’s grant of summary judgment as to

Vallimont’s retaliation claims. In evaluating retaliation claims under Title VII and

FEHA, we consider the McDonnell Douglas burden shifting analysis requiring a

plaintiff to first set forth a prima facie case of retaliation. See Miller v. Fairchild

Indus., Inc., 885 F.2d 498, 504 n.4 (9th Cir. 1989); see also Flait v. North Am.

Watch Corp., 3 Cal. App. 4th 467, 475-476 (Cal. Ct. App. 1992). A plaintiff must

demonstrate that: “(1) he engaged in a protected activity; 2) he suffered an adverse

employment decision; and 3) there was a causal link between the protected activity

and the adverse employment decision.” Villiarimo, 281 F.3d at 1064. If a prima

facie case is established:

             [t]he burden of production then shifts to the defendant-employer to
             articulate a legitimate, non-retaliatory explanation for the adverse
             employment action. If the employer successfully rebuts the inference


                                            5
             of retaliation, the burden of production shifts back to the plaintiff to
             show that the defendant’s proffered explanation is merely a pretext for
             impermissible retaliation.

Miller, 885 F.2d at 504 n.4 (citations omitted).

      Vallimont has not established a prima facie case of retaliation because he has

not demonstrated that he engaged in protected activity. The record does not show

that he informed Chevron that Isabel Delgadillo received preferential treatment on

the basis of her race, gender, or national origin in violation of Title VII or FEHA.

And again, even assuming arguendo that Vallimont has set forth a prima facie case,

Chevron asserted a legitimate, non-discriminatory reason for its action - an

investigation revealed findings of inappropriate conduct in violation of company

policy. Vallimont has failed to demonstrate that questions of fact exist as to

whether this reason was really a pretext for unlawful retaliation because he has not

shown that Hedges did not honestly believe Gallacher’s report regarding

Vallimont’s misconduct to be true.

      Finally, Vallimont’s claim for wrongful termination in violation of public

policy fails. “In order to sustain a claim of wrongful discharge in violation of

fundamental public policy, [a plaintiff] must prove that his dismissal violated a

policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a

statute or constitutional provision.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th


                                          6
1238, 1256 (1994). Vallimont argues that Chevron’s act of discriminating against

him on the basis of race and gender violates public policy. However, as addressed

above, Vallimont has not raised questions of fact as to whether he was wrongly

terminated or retaliated against on the basis of race or gender.

      Because Vallimont has failed to set forth questions of material fact, the

district court’s grant of summary judgment to Chevron on all appealed claims was

warranted.

      AFFIRMED.




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