Ben Piazza v. CBS Broadcasting, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2023
• Docket: 22-55615
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BEN PIAZZA; JOEL BINGER; KEVIN No. 22-55615 BELLOTTI; JIMMY VELARDE; WAYNE GETCHELL; NANCY PERRY; EDWARD D.C. No. NELSON; RON NUGENT; DAVE GOLBA; 2:20-cv-02920-DSF-AS PETER MALLARD; FREDERICK SMITH; JULIAN SALAS; ROBERTO BOSIO; RICHARD LABGOLD; DENISE STONES; MEMORANDUM* LESLIE NOURSE; LINDA RUSS; BARBRA CIMO; SHARON O'DANIEL; JODY LAWRENCE-MILLER; VICKI KAUFMAN; TRACY LAWRENCE; MARC BERUTI,

Plaintiffs-Appellants,

v.

CBS BROADCASTING, INC.; TELEVISION CITY STUDIOS, LLC; TELEVISION CITY SERVICES, LLC; TELEVISION CITY PRODUCTIONS, LLC; MICHAEL HACKMAN AND ASSOCIATES; HACKMAN CAPITAL PARTNERS, LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted September 15, 2023** Pasadena, California

Before: SCHROEDER, FRIEDLAND, and MILLER, Circuit Judges.

A group of former CBS employees (“Plaintiffs”) appeals the district court’s

grant of summary judgment in favor of their employer, CBS (“Defendant”), on

claims that Defendant violated the California Fair Employment and Housing Act

(“FEHA”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Plaintiffs’ briefing fails to comply with both the Federal Rules of

Appellate Procedure and our court’s rules. Under our court’s rules, “[e]very

assertion in the briefs regarding matters in the record, except for undisputed facts

offered only for general background, shall be supported by a citation to the

Excerpts of Record, unless the filer is exempt from the excerpts requirement.” 9th

Cir. R. 28-2.8; see also Fed. R. App. P. 28(a)(6), (e). Although Plaintiffs’ opening

brief contains numerous factual assertions, it includes only a handful of citations in

support—all of which are to the Complaint or the district court’s order, not to

record evidence. Defendant pointed out these deficiencies in its response brief. In

reply, Plaintiffs’ brief includes a single citation to a range of over one hundred

pages from a submission by counsel to the district court (much of which was

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 reproduced verbatim in the brief without any additional explanation), which itself

contains citations that have no correspondence to the appellate excerpts of record.

This is insufficient to remedy the deficient opening brief. See Indep. Towers of

Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[J]udges are not like

pigs, hunting for truffles buried in briefs.” (quoting United States v. Dunkel, 927

F.2d 955, 956 (7th Cir. 1991))).

Those failures could warrant outright dismissal of this appeal. See N/S

Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) (striking the

appellant’s deficient briefs and dismissing the appeal). Nevertheless, we proceed

to the merits and conclude that the appeal is not meritorious.

2. Plaintiffs contend that the district court’s order was inappropriately short

and failed to adequately explain its reasoning. But the district court’s analysis

easily satisfies Rule 56’s directive that a trial court “should state on the record the

reasons for granting or denying the motion.” Fed. R. Civ. P. 56(a); see also Fed.

R. Civ. P. 56(a) advisory committee’s note to 2010 amendments (“The form and

detail of the statement of reasons are left to the court’s discretion.”).

3. The district court did not err in granting summary judgment to Defendant

on Plaintiffs’ disparate treatment claim. Plaintiffs challenge two decisions that

they argue adversely impacted them: (1) the decision to transfer them to a different

employer as part of an acquisition, and (2) the decision to exclude transferred

3 employees from a voluntary buyout. Even assuming those are adverse

employment actions, Defendant has provided legitimate, nondiscriminatory

reasons for both decisions. Defendant explained that (1) the transferred employees

were selected based on their roles, to ensure continuity of operations after the

transfer, and (2) Defendant was contractually obligated to exclude the transferred

employees from the voluntary buyout.

To defeat summary judgment, then, Plaintiffs “had the burden to rebut this

facially dispositive showing by pointing to evidence which nonetheless raises a

rational inference that intentional discrimination occurred.” Guz v. Bechtel Nat’l

Inc., 24 Cal. 4th 317, 357 (2000). They have not done so. Although Plaintiffs

assert that Defendant’s proffered reasons were pretextual, they offer no evidence in

support of that assertion apart from their subjective beliefs that Defendant

discriminated against them due to their age.

4. Summary judgment was also warranted on Plaintiffs’ disparate impact

claim. Plaintiffs have offered no evidence—statistical or otherwise—in support of

their claim that a disproportionate number of older employees was transferred.

They have accordingly not made out a prima facie case of disparate impact. See

Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390, 1405 (2015) (requiring a

plaintiff to show that the challenged “facially neutral policy has caused a protected

group to suffer adverse effects” in order to make out a prima facie case of disparate

4 impact under FEHA); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1425 (9th Cir.

1990) (granting summary judgment to the defendant employer where the plaintiff

failed to make out a prima facie case of disparate impact).

AFFIRMED.