                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 30 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

VAUGHN ALLEN, an individual,                  No. 09-56029

              Plaintiff-Appellant,            D.C. No. 2:08-cv-03671-MMM-CW

  v.
                                              MEMORANDUM *
FEDEX EXPRESS, a corporation,

              Defendant-Appellee.




                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                     Argued and Submitted November 5, 2010
                              Pasadena, California

Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.

       Vaughn Allen brought this action in California state court alleging that he

was discharged by his employer, FedEx Express Corporation (“FedEx”), in

violation of the California Fair Employment and Housing Act (“FEHA”), Cal.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
Gov’t Code §§ 12940-96. The district court, in two separate opinions, granted

summary judgment to FedEx, and Mr. Allen now appeals. We affirm.




                                          1.

      We agree with the district court that, viewing the facts in the light most

favorable to Mr. Allen, he satisfied the burdens of a prima facie case of

discrimination under the FEHA. Specifically, Mr. Allen has presented sufficient

evidence that his employer perceived him as disabled: FedEx was aware of his

seizure history, his extended medical leaves and his on-going need for medications

to control his seizures; his first supervisor told him that he should come to work

even if the paramedics had to bring him in; his second supervisor told him that he

would be sent home if he looked sick. Winarto v. Toshiba America Electronics

Components, Inc., 274 F.3d 1276, 1291 (9th Cir. 2001), is not to the contrary.

Although in Winarto we found physicians’ notes detailing the plaintiff’s

limitations to be insufficient to show that the employer perceived her as disabled,

our conclusion focused significantly on the transient nature of that plaintiff’s

conditions. The indefinite duration of Mr. Allen’s condition makes it substantially

different from the back and ankle injuries in Winarto.




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                                          2.

      FedEx presented evidence of a legitimate, non-discriminatory reason for Mr.

Allen’s discharge, namely, on-going performance problems. Under the framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the burden shifted

back to Mr. Allen to produce evidence that FedEx’s “articulated reason is

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.” Nicholson v. Hyannis Air Serv.,

Inc., 580 F.3d 1116, 1126-27 (9th Cir. 2009) (internal quotation marks omitted).

      We agree with the district court that Mr. Allen has failed to sustain this

burden. Mr. Allen attempts to establish pretext by arguing that FedEx shifted its

reasons for his discipline, that FedEx now relies on reasons discovered by the

decision-maker only after the severance offer initially was made and that some of

the work errors recorded in his file are too old to support his termination. These

allegations, however, are not supported by the record. Mr. Allen also points to the

timing of his investigatory suspension, immediately upon his return from medical

leave. Under the circumstances of this case, however, this evidence is not

sufficient to meet Mr. Allen’s burden. Mr. Allen’s termination came only after a

comprehensive review of his overall work performance, which FedEx initiated


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because significant errors had been discovered during his absence. Accordingly,

summary judgment was entered properly for FedEx on Mr. Allen’s FEHA

discriminatory discharge claim.




                                           3.

      On his claim that FedEx failed to engage in the interactive process, Mr.

Allen has not challenged an independent basis for the district court’s entry of

judgment: failure to exhaust administrative remedies. “[T]he failure of a party in

its opening brief to challenge an alternate ground for a district court’s ruling given

by the district court waives that challenge.” Rodriguez v. Hayes, 591 F.3d 1105,

1118 n.6 (9th Cir. 2010). Even if we were to excuse the waiver in this court,

however, we would agree with the district court’s conclusion that Mr. Allen did not

exhaust his administrative remedies with respect to his interactive process claim.

He presented a charge to the California Department of Fair Employment and

Housing that made no reference whatsoever to his employer’s failure to work with

him in either his factual description or his selection from the list of claimed

discriminatory acts.




      AFFIRMED.


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