Scott Johnston v. City of Red Bluff

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2018
• Docket: 15-15033
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT JOHNSTON, No. 15-15033

Plaintiff-Appellant, D.C. No. 2:09-cv-01353-CMK

v. MEMORANDUM* CITY OF RED BLUFF,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Craig Kellison, Magistrate Judge, Presiding

Submitted May 18, 2018**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Scott Johnston appeals pro se from the district court’s summary judgment

and judgment as a matter of law in Johnston’s action alleging that defendants failed

to promote him and terminated his employment in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., his due

* 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). process rights, and state law. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Shelley v. Geren. 666 F.3d 599, 604 (9th Cir. 2012) (summary

judgment), Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008)

(judgment as a matter of law). We may affirm on any ground supported by the

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.

2008). We affirm.

To the extent that Johnston’s due process claim is premised on defendants’

failure to promote him, the district court properly granted summary judgment

because Johnston failed to raise a triable dispute as to whether he was deprived of

any protected property interest. See Nunez v. City of Los Angeles, 147 F.3d 867,

873 (9th Cir. 1998) (“Until someone actually receives a promotion, or at least a

binding assurance of a forthcoming promotion, he cannot claim a property interest

in the promotion.”). To the extent that the claim is premised on defendants’

termination of his employment, Johnston failed to raise a triable dispute as to

whether defendants failed to comply with the grievance procedures established in

the collective bargaining agreement or whether those procedures were

constitutionally inadequate. See Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir.

1992) (“A public employer may meet its obligation to provide due process through

2 grievance procedures established in a collective bargaining agreement, provided, of

course, those procedures satisfy due process.”).

The district court properly granted summary judgment on Johnston’s ADEA

claim premised on the reduction in workforce because Johnston failed to raise a

triable dispute as to whether his termination was motivated by a discriminatory

purpose. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000) (at

summary judgment, “[i]n response to [defendants’] offer of nondiscriminatory

reasons [for the adverse employment action, the plaintiff] must produce specific,

substantial evidence of pretext” (citation and internal quotation marks omitted)).

Summary judgment on Johnston’s claim alleging that individual defendants

conspired to violate the ADEA was proper because the ADEA does not impose

individual liability on employees. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583,

587-88 (9th Cir. 1993) (holding that individual defendants cannot be held liable for

damages under the ADEA).

The district court properly granted judgment as a matter of law on

Johnston’s remaining ADEA claim because Johnston failed to provide evidence at

trial that age was the “but-for” cause of defendants’ failure to promote him. See

Shelley. 666 F.3d at 607 (“To prevail on a claim for age discrimination under the

3 ADEA, a plaintiff must prove at trial that age was the ‘but-for’ cause of the

employer’s adverse action.”).

The district court properly granted summary judgment on Johnston’s

negligence claim because the California Workers’ Compensation scheme generally

is the sole and exclusive remedy against employers for injuries arising during the

course of employment. See Cal. Lab. Code § 3602(a); Miklosy v. Regents of Univ.

of Cal., 188 P.3d 629, 645-46 (Cal. 2008) (“To the extent [a] plaintiff purports to

allege any distinct cause of action, not dependent upon the violation of an express

statute or violation of fundamental public policy, but rather directed at the

intentional, malicious aspects of defendants’ conduct,” workers’ compensation

laws bar the claim (citation and internal quotation marks omitted)).

AFFIRMED.