Piyush Gupta v. International Business Machines Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIYUSH GUPTA,
Plaintiff-Appellant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant-Appellee.
No. 16-15224
D.C. No. 5:14-cv-01358-EJD
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted July 9, 2018**
San Francisco, California
Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,*** District
Judge.
* 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).
*** The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
FILED
JUL 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
Plaintiff Piyush Gupta appeals from an adverse partial summary judgment
and a defense verdict in his wrongful termination lawsuit against International
Business Machines Corporation (IBM). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. The district court properly dismissed Gupta’s disability discrimination
claim under the California Fair Employment and Housing Act (FEHA), Cal. Gov’t.
Code § 12900 et seq., on the grounds that Gupta provided no evidence that he was
terminated “because of his disability.” See Nealy v. City of Santa Monica, 234 Cal.
App. 4th 359, 378 (2015). Gupta argues that the temporal proximity between the
onset of his disability and his termination is sufficient to establish a prima facie
case of discrimination.
Gupta provides no supporting evidence to suggest discrimination beyond the
temporal connection between his disability and termination. See Arteaga v.
Brink’s Inc., 163 Cal. App. 4th 327, 341 (2008). In fact, Gupta in his deposition
conceded: “I do not have any facts [that cause me to believe IBM terminated me
because I had this back condition].” The record demonstrates IBM’s efforts to
accommodate his disability. For example, Gupta received and subsequently
declined short-term disability leave, was approved to fly business class, was in the
process of receiving ergonomic furniture, and never felt any animus because of his
disability. Each of these facts undermines his assertion that his disability was the

-- 2 of 5 --

3
reason for his firing; rather, the evidence shows Gupta was laid off because he had
suggested it. In the circumstances, Gupta failed to offer sufficient temporal
connection or other circumstantial evidence to establish that his disability caused
his termination. No reasonable finder of fact could conclude otherwise. Therefore,
the district court’s grant of summary judgment was proper.
2. The district court applied the proper standard regarding pretext after
finding that IBM had articulated a business-related, non-discriminatory reason for
terminating Gupta’s employment. See Noyes v. Kelly Servs., 488 F.3d 1163,
1169–70 (9th Cir. 2007). The district court correctly stated that Gupta “must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in [IBM’s] proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence and hence
infer that the employer did not act for the non-discriminatory reasons.” The
district court explained that providing new discriminatory evidence is one way to
demonstrate that the employer’s reasons for termination were pretextual.
Gupta’s evidence of temporal proximity, “even if it may technically
constitute a prima facie case, is too weak to raise a rational inference that
discrimination occurred” and to satisfy his burden to show pretext. Guz v. Bechtel
Nat’l, Inc., 24 Cal. 4th 317, 362 (2000). Therefore, the district court’s grant of
summary judgment was proper.

-- 3 of 5 --

4
3. As discussed above, the district court properly ruled that Gupta failed
to state a claim under FEHA. Therefore, his claim for wrongful termination in
violation of public policy also fails.1 Dep’t of Fair Emp’t and Hous. v. Lucent
Techs., Inc., 642 F.3d 728, 748–49 (9th Cir. 2011).
4. Contrary to Gupta’s claims, nothing in the district court’s order
suggests improper credibility determinations or weighing of conflicting evidence.
The district court focused on the material facts, including that Gupta volunteered
for termination, and properly ignored his irrelevant explanation for the offer. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Gupta’s reasoning
for volunteering to be laid off does not undermine IBM’s explanation that they
chose to “take him up on his suggestion.” The district court correctly applied the
summary judgment standard.
5. The district court also correctly applied California law in dismissing
Gupta’s fraud claim. To constitute a misrepresentation, whether by representation
or concealment, the statement must be false. Lazar v. Superior Court, 12 Cal. 4th
631, 638 (1996). The district court found that the Instant Message conversation
between Gupta and Mitchak did not involve any “misstatement[s] of fact” or
“misrepresentation [of] a past or existing material fact.”
1 Gupta also concedes that his “claim for wrongful termination arises from IBM’s
violation of his statutory rights under the FEHA.”

-- 4 of 5 --

5
Even if Gupta could demonstrate that Mitchak made a misrepresentation by
concealment or affirmative statement, he fails to allege any facts to support the
other elements of fraud. See id. Gupta provides no evidence regarding Mitchak’s
knowledge that his statements were false or his intent to defraud, both elements
under California law. Id. Therefore, summary judgment was warranted dismissing
Gupta’s fraud claim.
6. The district court did not abuse its discretion in denying Motion in
Limine No. 3. Gupta was required to “identify a reasonable accommodation . . .
through the litigation process, including discovery.” Scotch v. Art Inst. Of Cal.-
Orange Cty., Inc., 173 Cal. App. 4th 986, 995 (2009). Gupta failed to state in his
interrogatories that denial of short-term disability was a fact he sought to support
his reasonable accommodation claim.
AFFIRMED.

-- 5 of 5 --