Cyrus Raphael v. Tesoro Corporation, a Corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYRUS RAPHAEL,
Plaintiff-Appellant,
v.
TESORO CORPORATION, a Corporation;
et al.,
Defendants-Appellees.
No. 16-56759
D.C. No.
2:15-cv-05080-SVW-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted April 13, 2018
Pasadena, California
Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.
Plaintiff Cyrus Raphael appeals the district court’s grant of summary
judgment to his former employer, Tesoro Refining & Marketing Company, on
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
APR 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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several California state-law causes of action arising from Raphael’s termination in
March 2014. The appeal lacks merit.
The district court properly granted summary judgment to Tesoro on
Raphael’s claim for race discrimination in violation of Cal. Gov’t Code
§ 12940(a). The McDonnell Douglas burden-shifting framework applies to claims
of disparate treatment brought under California’s Fair Employment and Housing
Act, which includes § 12940(a). Merrick v. Hilton Worldwide, Inc., 867 F.3d
1139, 1145 (9th Cir. 2017). Assuming that Raphael has established a prima facie
case at step one, Tesoro has met its step-two burden by offering a non-
discriminatory justification for the termination: namely, that Raphael repeatedly
violated company policy by engaging in hostile and insubordinate conduct and
using profanity toward his supervisor, Loren Ahlen, and that Raphael yelled at and
harassed three different contractors who worked with Tesoro. At step three, it is
Raphael’s burden to “raise a triable issue suggesting that the employer’s proffered
reason is mere pretext for unlawful discrimination, or offer other evidence of
discriminatory motive.” Id. at 1146.
Raphael failed to meet this burden because he did not offer enough evidence
to create a genuine issue as to whether Tesoro’s asserted reasons for firing him
were pretextual. He first offers direct evidence of pretext through the declarations
of two individuals, Astrid Labadie and Ritchie Roberts, which state that Ahlen

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made derogatory remarks toward Raphael prior to 2011 and once in 2012.
However, the declarations are bare-bones; they conspicuously omit the substance
of Ahlen’s alleged remarks, and instead offer only the conclusion that those
remarks were derogatory. Although “very little” direct evidence of discriminatory
intent is needed to defeat summary judgment, Chuang v. Univ. of Cal. Davis, Bd.
of Trs., 225 F.3d 1115, 1128 (9th Cir. 2000) (quoting Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)), Raphael’s evidence fails to clear even
this low hurdle. First, Raphael has forfeited the argument because his motion in
opposition to summary judgment did not contend that he could show pretext based
on either of these declarations, and he raises the argument for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Even if the argument were not forfeited, these declarations are too
conclusory to raise a genuine issue regarding pretext. “Conclusory, speculative
testimony in affidavits . . . is insufficient to raise genuine issues of fact and defeat
summary judgment.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007). The conclusory nature of the declarations distinguishes this case from
others in which evidence of the specific content of discriminatory statements
overcame summary judgment. See, e.g., Chuang, 225 F.3d at 1128 (reversing
summary judgment when a member of the defendant’s Executive Committee had
said that “‘two Chinks’ in the pharmacology department were ‘more than

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enough’”); Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149–50 (9th Cir.
1997) (reversing summary judgment when the supervisor had referred to another
employee as a “dumb Mexican”).
Moreover, the record is replete with evidence that Tesoro actually fired
Raphael based on his misconduct. Raphael admits that he repeatedly cursed at and
was insubordinate to Ahlen, and the record shows that Tesoro thoroughly
investigated complaints made by three different contractors that Raphael had
engaged in harassing, disrespectful, and unprofessional conduct toward them. In
view of this record evidence, no reasonable jury could conclude that the vague and
conclusory declarations Raphael offers show that Tesoro’s non-discriminatory
justifications were pretextual.
Raphael also points to a host of circumstantial evidence, but it does not raise
a genuine issue as to pretext. To avoid summary judgment using circumstantial
evidence, a plaintiff must offer circumstantial evidence that is “specific and
substantial.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)
(quoting Godwin, 150 F.3d at 1222). Raphael’s circumstantial evidence does not
rise to this level. He argues that Tesoro’s investigation into the contractors’
complaints against him was so deficient as to amount to a sham, see Mendoza v. W.
Med. Ctr. Santa Ana, 166 Cal. Rptr. 3d 720, 728 (Cal. Ct. App. 2014), but the
purported flaws Raphael identifies are either non-existent or de minimis.

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Raphael’s retaliation claim under Cal. Gov’t Code § 12940(h) is also subject
to the McDonnell Douglas framework, Lawler v. Montblanc N. Am., LLC, 704
F.3d 1235, 1243 (9th Cir. 2013), and it also fails at step three because Raphael has
not produced evidence of pretext.
The district court properly granted Tesoro summary judgment on Raphael’s
harassment claim as well. Under Cal. Gov’t Code § 12940(j), a plaintiff must
show harassment that is more than “occasional, isolated, sporadic, or trivial[;]
rather the plaintiff must show a concerted pattern of harassment of a repeated,
routine or a generalized nature.” Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d
846, 851 (Cal. 1999) (quoting Fisher v. San Pedro Peninsula Hosp., 262 Cal. Rptr.
842, 852 (Cal. Ct. App. 1989) (alteration in original)). Raphael has not offered
evidence of harassment anywhere close to this level. For one thing, he admitted in
deposition testimony that he could not recall Ahlen ever making discriminatory
comments to him based on his race or national origin. Even if the Labadie and
Roberts declarations are taken into account, they fall well short of establishing a
“concerted pattern of harassment of a repeated, routine or a generalized nature.”
Finally, the district court correctly held that Raphael’s claim under Cal.
Gov’t Code § 12940(k) fails in the absence of any underlying discrimination,
harassment, or retaliation. See Merrick, 867 F.3d at 1150; Trujillo v. N. Cty.
Transit Dist., 73 Cal. Rptr. 2d 596, 601–02 (Cal. Ct. App. 1998).

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Raphael raises additional arguments, but they are also without merit.
The judgment of the district court is affirmed.

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