Jack B. Roy, an individual v. LABORER'S LOCAL 737, a domestic nonprofit mutual benefit corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK B. ROY, an individual,
Plaintiff-Appellant,
v.
LABORER'S LOCAL 737, a domestic
nonprofit mutual benefit corporation;
ZACKARY CULVER, an individual,
Defendants-Appellees.
No. 21-35103
D.C. No. 3:18-cv-01695-YY
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Karin J. Immergut, District Judge, Presiding
Argued and Submitted December 9, 2021
San Francisco, California
Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
Jack Roy appeals from the district court’s order granting summary judgment
to Laborer’s Local 737 (“Local 737”) in Roy’s action under the Age Discrimination
in Employment Act (“ADEA”) and Oregon’s age discrimination laws, Or. Rev. Stat.
§ 659A.030(1)(a)–(c). Roy claims that Local 737 terminated him because of his age.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We review the district court’s grant of summary judgment de novo, viewing the facts
in the light most favorable to Roy as the non-moving party. Howard v. HMK
Holdings, LLC, 988 F.3d 1185, 1189 (9th Cir. 2021). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
To establish a claim of age discrimination under the ADEA, Roy must show
that age was the “but-for” cause of his termination.1 Gross v. FBL Fin. Services,
Inc., 557 U.S. 167, 176 (2009). To the extent Roy advances a theory of direct
evidence of age discrimination, his claim fails. “Direct evidence of discriminatory
intent consists of evidence which, if believed, proves the fact of discriminatory
animus without inference or presumption.” Mayes v. WinCo Holdings, Inc., 846
F.3d 1274, 1280 (9th Cir. 2017) (simplified). But such evidence must be “directly
tied to the adverse employment decision.” France v. Johnson, 795 F.3d 1170, 1173
(9th Cir. 2015). While Roy identifies comments that others at Local 737 allegedly
made about his age, he has not shown those comments were “directly tied” to his
termination. Id. Additionally, many of the remarks were not “clearly” ageist. See
1 Roy claims Oregon law uses a “substantial factor” standard of causation rather than
the ADEA’s “but for” test. But Roy forfeited this argument because arguments not
raised before the magistrate judge are “barred, absent exceptional circumstances or
a convincing explanation for the failure to present them.” Greenhow v. Sec’y of
Health & Hum. Servs., 863 F.2d 633, 639 (9th Cir. 1988), overruled on other
grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
Regardless, Roy has not demonstrated that a “substantial factor” test would require
a different result in this case. We thus refer to Roy’s claims collectively as an ADEA
claim.

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Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) (Direct evidence
usually requires “clearly . . . discriminatory statements.”). As the magistrate judge
correctly observed, “[t]here is no direct evidence that [Roy] was terminated because
of his age.”
Roy’s attempt to create a genuine dispute of material fact through
circumstantial evidence also fails. When a plaintiff attempts to prove discriminatory
intent based on circumstantial evidence, we apply the burden-shifting framework
from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Shelley v.
Geren, 666 F.3d 599, 607–08 (9th Cir. 2012). Here, we assume without deciding
that Roy has made out a prima facie case of age discrimination. See Diaz v. Eagle
Produce, Ltd., 521 F.3d 1201, 1207 (9th Cir. 2008) (setting forth elements of prima
facie case for ADEA claim).
Under McDonnell Douglas, the burden then shifts to Local 737 “to articulate
a legitimate, nondiscriminatory reason for its employment action.” Raytheon Co. v.
Hernandez, 540 U.S. 44, 49 n.3 (2003). In this case, Local 737 offered evidence
that Roy was terminated for accepting an item of value, an air conditioning/heating
unit, from a signatory contractor at a job site, violating union rules. Local 737
demonstrated that the Local 737 Trial Board and a special hearings panel of the
national union found that Roy’s actions were at the very least improper and reflected
poorly on the union. Local 737 further demonstrated that it terminated Roy shortly

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after learning he had taken the air conditioning/heating unit. Such misconduct
provided a legitimate, nondiscriminatory reason for Local 737’s termination
decision.
At this point, the burden then shifted to Roy to “prove disparate treatment
by . . . offering evidence demonstrating that the employer’s explanation is
pretextual.” Id. Roy therefore had to “introduce evidence sufficient to raise a
genuine issue of material fact as to whether the reasons [Local 737] articulated are
pretexts for age discrimination.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282
(9th Cir. 2000). This requires “showing that the employer’s proffered explanation
is unworthy of credence because it is internally inconsistent or otherwise not
believable.” Shelley, 666 F.3d at 609 (quotations omitted).
Considering the evidence cumulatively, see Raad v. Fairbanks N. Star
Borough, 323 F.3d 1185, 1194 (9th Cir. 2003), Roy has not demonstrated a genuine
dispute of material fact that Local 737’s explanation for his termination is pretextual.
The comments about Roy’s age—often by older union members—do not create a
genuine dispute of material fact because stray remarks such as those Roy identifies
are insufficient to raise an inference of discrimination. Nidds v. Schindler Elevator
Corp., 113 F.3d 912, 918–19 (9th Cir. 1996). And here, the magistrate judge
correctly observed that the comments constituted offhand remarks unrelated to

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Roy’s termination. Indeed, less than a year before his termination, Local 737
promoted Roy and gave him a $10,000 raise.
Nor has Roy demonstrated pretext in Local 737’s explanation that it
terminated Roy because he took an item of value from a signatory contractor. Even
crediting Roy’s explanation that his son was borrowing the air conditioning/heating
unit, a panel of the national union found that Roy’s actions were improper. Roy has
not shown that the union’s investigation of his misconduct was lacking or that further
inquiry would have led to a different result. Nor has he demonstrated that Local 737
inconsistently applies its prohibition against union employees taking items of value
from signatory contractors.
AFFIRMED.

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