GILBERT PALMER, Sr., an individual v. HUHTAMAKI, INC., a corporation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERT PALMER, Sr., an individual,
Plaintiff - Appellant,
v.
HUHTAMAKI, INC., a corporation,
Defendant - Appellee.
No. 12-56231
D.C. No. 2:11-cv-07396-PA-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted April 11, 2013 **
Pasadena, California
Before: RAWLINSON and BYBEE, Circuit Judges, and SIMON, District Judge. ***
Gilbert Palmer appeals from the district court’s summary judgment in favor
of Palmer’s former employer, Huhtamaki, Inc., on Palmer’s claims of (1)
FILED
MAY 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discrimination under California’s Fair Employment and Housing Act (FEHA), Cal
Gov’t Code § 12940(a), and (2) breach of an implied contract that Huhtamaki
would terminate Palmer only for good cause. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
California applies the framework established by McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), to FEHA discrimination claims. Earl v. Nielsen
Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). “Although
intermediate evidentiary burdens shift back and forth under this framework, the
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation
marks and alteration omitted). Palmer has failed to carry that burden. At most, he
has offered evidence calling into question Huhtamaki’s proffered
nondiscriminatory reason for forcing him to retire, but anti-discrimination laws
“do[ ] not award damages against employers who cannot prove a
nondiscriminatory reason for adverse employment action, but only against
employers who are proven to have taken adverse employment action by reason of
[an employee’s membership in a protected class].” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 523–24 (1993).

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Palmer’s implied-contract claim fails for three distinct reasons. First, under
California law, where there is an at-will provision in an “express written
agreement, signed by the employee,” that at-will provision “cannot be overcome
by proof of an implied contrary understanding.” Starzynski v. Capital Public
Radio, Inc., 105 Cal Rptr. 2d 525, 528 (Ct. App. 2001) (emphasis omitted). The
receipt Palmer signed acknowledging he had received the Huhtamaki employee
handbook was an express written agreement containing an at-will provision, see id.
at 527, so Palmer cannot successfully claim to have an implied contract that he
could only be terminated for good cause. The at-will provision allowed
Huhtamaki’s Chief Executive Officer to enter into agreements for employment that
was not at will, but Palmer does not allege any such agreement with the Chief
Executive Officer. See id. at 529.
Second, even if Palmer’s signed acknowledgment were not dispositive,
Palmer has not offered sufficient evidence of an implied contract to overcome the
at-will provision found in the Huhtamaki employee handbook. See Guz v. Bechtel
Nat’l, Inc., 8 P.3d 1089, 1100–09 (Cal. 2000).
Finally, even if there was an implied contract that termination would only be
for good cause, Huhtamaki had good cause to terminate Palmer for his violation of
company policy. See Cotran v. Rollins Hudig Hall Int’l, Inc., 948 P.2d 412, 417,

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422 (Cal. 1998); Silva v. Lucky Stores, Inc., 76 Cal. Rptr. 2d 382, 387, 394–95 (Ct.
App. 1998).
AFFIRMED.

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