NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 20 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RONALD PINEDA,                                  No.    19-55019

                Plaintiff-Appellant,            D.C. No.
                                                2:18-cv-03395-SVW-RAO
 v.

ABBOTT LABORATORIES INC., DBA                   MEMORANDUM*
Abbott Nutrition, DBA Abbott Sales,
Marketing Distribution Co., a corporation; et
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted August 19, 2020
                              Pasadena, California

Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,** Judge.

      Ronald Pineda appeals the district court’s denial of his motion to remand to

state court and dismissal on summary judgment of his claims that Abbott



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
Laboratories (“Abbott”) failed to accommodate his disabilities, discriminated

against him on the basis of age and disability, and engaged in retaliation. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial

of the motion to remand, Briggs v. Merck Sharp & Dohme, 

, 1047

(9th Cir. 2015), and the district court’s grant of summary judgment, Sonner v.

Schwabe N. Am., Inc., 

, 992 (9th Cir. 2018). We affirm the district

court’s denial of remand and grant of summary judgment on the reasonable

accommodation, disability discrimination, and retaliation claims under the Fair

Employment and Housing Act (“FEHA”). We reverse summary judgment on the

age discrimination claim.

      1. The district court properly held that Abbott met its burden of showing

that Pineda did not sufficiently plead harassment and intentional infliction of

emotional distress (“IIED”) claims against Alex Mazzenga, the only non-diverse

defendant. The district court thus properly denied the motion to remand to state

court because diversity was complete. 28 U.S.C. § 1332.

      Pineda failed to allege facts in his complaint sufficient to plead a harassment

claim. Mazzenga’s alleged conduct arose “out of the performance of necessary

personnel management duties,” Janken v. GM Hughes Elecs., 

,

63–64 (1996), and did not rise to the level of the pervasive hostility recognized by

the California Supreme Court in Roby v. McKesson Corp., 

, 709


                                          2                                   19-55019
(2009), as modified (Feb. 10, 2010). Additionally, Pineda did not allege facts

sufficient to plead the outrageous conduct required for a claim of IIED. See Cole

v. Fair Oaks Fire Prot. Dist., 

, 160 (1987).

       The district court ruled on the motion for remand on the basis of the

complaint before it. Pineda cites no case law requiring the district court to allow

Pineda to amend his complaint with respect to the fraudulently joined, non-diverse

defendant upon denial of remand. We affirm the district court’s denial of remand

to state court.

       2. The district court properly granted summary judgment for Abbott on

Pineda’s reasonable accommodation claim. It is undisputed that, following

Pineda’s traumatic brain injury, Abbott provided Pineda with eleven out of twelve

accommodations requested during the interactive process. Pineda argues that

Abbott failed to provide the twelfth requested accommodation, four-hour work

days for a period of six weeks. The record, however, makes clear that Abbott

accommodated a four-hour work day for an initial two-week period, after which

Pineda’s doctor cleared him to return to full-time work. Pineda testified that he did

not disagree with what his doctor wrote. The record, therefore, establishes that

Pineda did not need the full requested accommodation of six weeks of part-time

work, and thus that Abbott did not unreasonably deny it. We affirm the district




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court’s grant of summary judgment for Abbott on the reasonable accommodation

claim.

         3. The district court properly granted summary judgment for Abbott on

Pineda’s disability discrimination claim. Pineda made a sufficient showing that he

suffered from a disability and is otherwise qualified for his position, but he failed

to present a genuine issue of material fact as to whether “he was subjected to

adverse employment action because of his disability.” Faust v. Cal. Portland

Cement Co., 

, 886 (2007) (quoting Deschene v. Pinole Point

Steel Co., 

, 44 (1999)).

         To show he was subjected to an adverse employment action because of his

disability, Pineda points to (1) a supervisor’s criticism of him for sighing, (2) a

supervisor’s comments on his performance at meetings, (3) an email from his

supervisor that his medical leave put him further behind on performance, (4) an

alleged deficiency in Abbott’s discrimination investigation with respect to failing

to interview his supervisor, and (5) Abbott’s termination of him after his medical

leaves. However, it is undisputed that the supervisor was unaware of any disability

when criticizing Pineda for sighing; nothing in the comments about meeting

performance by a second supervisor suggested disability discrimination; and the

email was a true factual statement and expressed support for Pineda during a tough

time, context which Pineda failed to include in his briefs. The alleged procedural


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misstep in the investigation falls far short of showing discrimination based on

disability, pertained to a different disability than the one at issue immediately prior

to his termination, and was far in time from the termination. Lastly, it is

undisputed that Abbott initiated the first performance improvement plan, the

precursor to his termination, before Pineda took medical leave and informed

Abbott of his disabilities. Pineda presents no record evidence raising a genuine

issue as to whether any of Abbott’s comments or actions were discriminatory

toward his disabilities, and more importantly, presents no record evidence tying the

adverse employment action, termination, to the disability at issue in late 2016 and

early 2017, his traumatic brain injury. We thus affirm the district court on this

claim.

         4. The district court properly granted summary judgment for Abbott on

Pineda’s retaliation claims because Abbott established that no genuine issue of

material fact exists as to whether Pineda could make a showing of pretext.

         Even assuming arguendo that Pineda made a prima facie case, we conclude

that the district court correctly held that he failed to raise a triable issue of fact as to

whether Abbott’s proffered non-retaliatory motive, poor performance, was a

pretext for retaliation. As evidence of pretext, Pineda points to his supervisor’s

role in his termination, alleged defects in Abbott’s investigations into his

complaints, allegations that younger employees were treated differently, Abbott’s


                                             5                                      19-55019
alleged failure to train his supervisor on retaliation policies, the timing of his

termination, and his history of strong performance. Pineda, however, does not

point to any evidence that his poor performance reviews did not predate the

protected activity or that Abbott did not investigate all his complaints but one

(which was far-removed in time from his termination and was made to a supervisor

instead of to Employee Relations). The protected activity responded to two

strongly negative performance evaluations; such evaluations, the record indicates,

are usually followed by discipline or termination, negating an inference of

pretextual retaliation for the post-evaluations protected activity.

         Lastly, to establish pretext, Pineda points to a history of strong performance.

But that history involved accomplishments prior to and during 2011, well before

the protected activity.

         As there is no record evidence presenting a genuine issue of material fact as

to whether Abbott took an adverse employment action against Pineda in retaliation

for protected activity, we affirm the grant of summary judgment for Abbott on the

retaliation claim.

         5. The district court erred by granting summary judgment for Abbott on

Pineda’s age discrimination claim. Pineda made a prima facie showing as to age

discrimination, and genuine disputes of material fact exist as to pretext on that

claim.


                                            6                                        19-55019
      Pineda has satisfied the first three criteria for a prima facie case of age

discrimination under the FEHA. Pineda was over 40 and suffered an adverse

employment action, and Abbott does not challenge his ability to “demonstrate

some basic level of competence at his . . . job . . . based on objective, rather than

subjective, criteria.” Sandell v. Taylor-Listug, Inc., 

, 321–22

(2010).

      The district court applied the wrong standard in holding that Pineda failed to

satisfy the fourth criterion, that the termination occurred under circumstances

suggestive of unlawful discrimination. See

To satisfy the fourth prong

at the prima facie stage, the record evidence need only show that Pineda was

replaced by a substantially younger employee or that a genuine dispute exists as to

whether this was the case. See Nidds v. Schindler Elevator Corp., 

,

917 (9th Cir. 1996); 

; Hersant v. Dep’t of Social

Services, 

, 1003 (1997). Here, the parties do not dispute that

Pineda “was replaced by a younger female—who is younger than forty—after he

was terminated.” Abbott, therefore, cannot meet its burden of showing that the

record does not support a prima facie case of age discrimination.

      Because the parties do not dispute that Abbott can produce admissible

evidence to show the adverse employment action was taken for non-discriminatory

reasons and can thereby satisfy the second step of the McDonnell Douglas


                                           7                                     19-55019
framework, we proceed to the third step: Did Pineda raise a triable issue of fact as

to whether Abbott’s proffered reason for terminating Pineda is pretext? See Earl v.

Nielsen Media Research, Inc., 

, 1112 (9th Cir. 2011); Guz v. Bechtel

Nat. Inc., 

, 355–56 (2000). By giving great weight to subjective,

cumulative performance reviews and failing to account for conflicting “me too”

evidence and accounts of bias, the district court erred in concluding that there was

no genuine dispute of material fact as to whether Abbott’s non-discriminatory

rationale was pretextual.

      Complaints and performance evaluations are “often subjective” and may be

“motivated by discriminatory animus.” 

. The

record evidence demonstrates that, on some (but not all) objective criteria, Pineda

performed poorly, and Abbott is correct that such evidence could persuade a

reasonable jury to find that Abbott’s actions were not pretextual. But there is

additional evidence in the record that could lead a rational jury to find pretext, and

summary judgment was therefore improper.

      For example, as to the negative evaluations, Pineda challenged some of the

examples set forth in his performance reviews at the time, but his supervisors did

not respond to his emails containing the challenges. Pineda also argued at the time

and maintains now that at least one of the goals set forth in his performance

improvement plan, conversion of the Kaiser account in the immediate future, was


                                           8                                    19-55019
intended to set him up to fail. Although that goal was changed, a factfinder could

still infer a pretextual motive from the fact that it was established at the outset.

      Additionally, “me too” evidence—here, declarations by other employees,

including two supervisors, alleging adverse employment actions against other

employees for discriminatory reasons—may “constitute substantial evidence

requiring reversal of [summary] judgment.” Johnson v. United Cerebral

Palsy/Spastic Children’s Found. of Los Angeles & Ventura Ctys., 

740, 759 (2009). The record contains such evidence, although some of it was

qualified by the declarants in later declarations. Contrary to what Abbott suggests,

the submission of those later declarations does not eliminate the need for a trial to

sort out the importance of this evidence.

      Similarly, an executive within the organization stated in a declaration that

she was instructed to “manage out” more senior, higher salaried employees who

were usually older—by inventing performance problems and assigning

unattainable goals. She later, in another declaration, retracted one paragraph of the

declaration and made statements qualifying other parts of her original declaration.

      The conflicting accounts by the five declarants create a credibility question

regarding the weight to be accorded the contradictory evidence they provided, one

best suited for trial. Although Abbott asserts that the “me too” declarations are not

relevant because two of the declarants did not share any of Pineda’s supervisors,


                                            9                                     19-55019
two of the declarants did share supervisors, and all of the declarations may offer

relevant information about organizational practices. The conflicting declarations

with “me too” evidence and evidence of biased policies, coupled with the

subjective nature of the performance evaluations, create a genuine issue of material

fact as to pretext for discriminatory animus such that summary judgment on the

age discrimination claim was improper.

      For the foregoing reasons, the district court’s denial of remand to state court

is affirmed; the district court’s grant of summary judgment for Abbott as to the

reasonable accommodation, disability discrimination, and retaliation claims is

affirmed; and the district court’s grant of summary judgment as to the age

discrimination claim is reversed.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part and REVERSED in part.




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