Phillip Frazier v. American Airlines, Inc.

FILED NOT FOR PUBLICATION DEC 10 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PHILLIP FRAZIER, No. 23-55508 Plaintiff-Appellant, D.C. No. 2:22-cv-04723-JFW-JEM v. AMERICAN AIRLINES, INC., a MEMORANDUM* Delaware corporation; MOANA JEREMIA, an individual; DOES, 1 through 10, inclusive, Defendants-Appellees. Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding Submitted December 10, 2024** San Francisco, California Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges. Phillip Frazier appeals pro se from the district court’s summary judgment in his age discrimination action under California's Fair Employment and Housing Act * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and related claims against his former employer, American Airlines (American). See Cal. Gov’t Code § 12940(a). Frazier claimed that American used its June 2020 COVID-19 Reduction in Force as pretext to terminate Frazier's employment because of his age. Reviewing de novo,1 we affirm. The district court did not err in granting American’s motion for summary judgment on Frazier’s age discrimination claim. See Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (2000). Frazier’s prima facie case for age discrimination fails because he did not create a triable issue of fact regarding whether he was terminated because of his age. See id. To support his age discrimination claim, Frazier cited his own opinion and statistics about the employees who were terminated alongside him in American’s COVID-19 Reduction of Force, but neither is availing. See Horn v. Cushman & Wakefield W., Inc., 85 Cal. Rptr. 2d 459, 472 (Ct. App. 1999); see also Martin v. Bd. of Trs. of Cal. State Univ., 315 Cal. Rptr. 3d 117, 135 (Ct. App. 2023). Frazier's age discrimination claim fails for the additional reason that American presented legitimate non-discriminatory reasons for Frazier's termination that Frazier failed to show were pretextual. See Kelly v. Stamps.com Inc., 38 Cal. Rptr. 3d. 240, 247 (Ct. App. 2005); see also Guz, 8 P.3d at 1114. We reject Frazier’s belated attempts to supplement the record and 1 Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). 2 23-55508 raise new issues in support of his age discrimination claim on appeal. See Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003); see also Padgett v. Wright, 587 F.3d 983, 985 & n.2 (9th Cir. 2009) (per curiam). The district court also correctly entered summary judgment for American on Frazier's claims for failure to prevent discrimination in violation of California Government Code § 12940(k) and wrongful termination in violation of public policy. Both claims are predicated on a showing of discrimination, which Frazier did not make. See Scotch v. Art Inst. of Cal.-Orange Cnty. Inc., 93 Cal. Rptr. 3d. 338, 367 (Ct. App. 2009); Commodore Home Sys., Inc. v. Superior Court, 32 Cal. 3d 211, 213, 220 (1982); see also Stevenson v. Superior Ct., 941 P.2d 1157, 1162–63 (1997). Finally, we decline to reinstate Frazier's disability discrimination claims2 that he conceded should be dismissed in the district court. See CDN Inc. v. Kapes, 197 F.3d 1256, 1258–59 (9th Cir. 1999). AFFIRMED. 2 Frazier initially brought claims for disability discrimination in violation of California Government Code § 12940(a); failure to accommodate disability in violation of California Government Code § 12940(m)(1); and failure to engage in interactive process in violation of California Government Code § 12940(n). 3 23-55508