Titus Striplin, an individual v. SHAMROCK FOODS COMPANY, INC., an Arizona Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TITUS STRIPLIN, an individual,
Plaintiff-Appellant,
v.
SHAMROCK FOODS COMPANY, INC.,
an Arizona Corporation,
Defendant-Appellee.
No. 16-55618
D.C. No.
5:15-cv-00664-JGB-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted March 5, 2018
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief
District Judge.
Plaintiff-Appellant Titus Striplin (“Striplin”) appeals the district court’s
order granting Defendant Shamrock Foods Company, Inc.’s (“Shamrock”) motion
for summary judgment. Striplin argues that the district court abused its discretion
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
FILED
APR 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2 16-55618
when it did not consider Striplin’s untimely filed documents, and that there were
triable issues on all claims. We have jurisdiction pursuant to 28 U.S.C. § 1291.
First, the district court abused its discretion when it refused to admit
Striplin’s untimely filed documents. The illness of counsel, which constituted
excusable neglect, combined with the length of delay, only three hours, supports
the conclusion that the filing of these documents should have been allowed.
However, there is nothing contained in these documents that raised a genuine
dispute of material fact sufficient to prevent summary judgment. Thus, this error
was harmless, and the district court did not err in granting summary judgment for
Shamrock.
The district court properly granted summary judgment on Striplin’s
retaliation claim under Section 1102.5 of the California Labor Code because
Striplin failed to raise a genuine dispute of material fact as to whether he had
engaged in a protected activity. See Mokler v. Cty. of Orange, 68 Cal. Rptr. 3d
568, 580 (Cal. Ct. App. 2007).
The district court also properly granted summary judgment on Striplin’s
discrimination claims under the Fair Employment and Housing Act (“FEHA”)
because workplace stress related to the employee’s job performance is not a
cognizable disability under FEHA. Higgins-Williams v. Sutter Med. Found., 187
Cal. Rptr. 3d 745, 750 (Cal. Ct. App. 2015). Thus, Striplin is unable to establish a

-- 2 of 4 --

3 16-55618
prima facie case of discrimination, and even if he was, he failed to raise a genuine
dispute of material fact as to whether Shamrock had knowledge of his disability.
Brundage v. Hahn, 66 Cal. Rptr. 2d 830, 836 (Cal. Ct. App. 1997). Similarly,
because Striplin failed to put Shamrock on notice of his disability and request for
accommodation prior to his termination, summary judgment was properly granted
on his accommodation claim under FEHA. King v. United Parcel Serv., Inc., 60
Cal. Rptr. 3d 359, 374 (Cal. Ct. App. 2007).
Striplin’s wrongful discharge in violation of public policy claim premised on
Shamrock’s alleged violation of California Labor Code § 1102.5 fails as well.
Striplin has not established that a predicate violation of the law occurred. Tameny
v. Atl. Richfield Co., 610 P.2d 1330, 1336 (Cal. 1980).
Next, the district court properly found that Striplin’s claims for intentional
infliction of emotional distress were preempted by California workers’
compensation remedy. Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 903
(Cal. 2008).
Summary judgment was also properly granted in favor of Shamrock
regarding Striplin’s claims under California Labor Code §§ 201, 224, and 226
because the district court properly found that Shamrock correctly paid Striplin
when it issued his final paycheck. Willner v. Manpower Inc., 35 F. Supp. 3d 1116,
1128 (N.D. Cal. 2014) (citing Reinhardt v. Gemini Motor Transp., 879 F. Supp. 2d

-- 3 of 4 --

4 16-55618
1138, 1141 (E.D. Cal. 2012)). Finally, the district court did not enter summary
judgment on these claims by default and, thus, Federal Rule of Civil Procedure
56(e) does not afford Striplin any relief.
AFFIRMED.

-- 4 of 4 --