Vygovskiy v. TUV Rheinland of North America, Inc.

50 F. App'x 341

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2002
• Docket: No. 01-56555; D.C. No. CV 00-00901-BTM
• Status: Published

Opinion

MEMORANDUM ²

Plaintiff-Appellant Yuriy Vygovskiy brought an action under the ADEA and Title VII alleging that he was terminated by Defendant-Appellee TUV Rheinland of North America, Inc. (“Defendant” or “TUV”) because of his age and national origin. Defendant moved for summary judgment, and the district court, holding that the plaintiff failed to make out a prima facie case of discrimination under either Title VII or the ADEA, granted the motion. The district court denied Plaintiff Vygovskiy’s subsequent motion to alter or amend the district court’s judgment under Fed.R.Civ.P. 59(e).

Plaintiff-Appellant here appeals the grant of summary judgment and claims abuse of discretion with respect to the denial of the Rule 59(e) motion. While Plaintiff-Appellant Vygovskiy did meet many requirements sufficient to establish a prima facie case under the ADEA (member of the protected class, sufficient job performance, and discharge), he failed to establish that he was replaced by anyone, much less one who was substantially younger. Accordingly, his prima facie case under the ADEA fails. Likewise, although Vygovskiy did meet many requirements sufficient to establish a prima facie case under Title VII (member of protected class, sufficient job performance), he failed to establish that he was replaced. Even so, Plaintiff-Appellant Vygovskiy might have been able to save his prima facie claim by offering evidence giving rise to an inference of discrimination. However, because he failed to offer such evidence his prima facie claim falls.

Because the district court’s denial of Plaintiffs Rule 59(e) motion was not clearly illogical, we decline to reverse for abuse of discretion.

AFFIRMED. Each side to bear its own costs.

2 . This disposition is not appropriate for publication and may not be cited in or by the courts of this circuit except as may be provided by NINTH CIRCUIT RULE 36-3.