Opinion
21-56381
11-04-2022
VIRGIL M. LORENZO, Plaintiff-Appellant, v. LLOYD J. AUSTIN III, Secretary, Department of Defense, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted October 4, 2022 Pasadena, California
Appeal from the United States District Court for the Southern District of California D.C. No. 3:19-cv-01128-WQH-BGS William Q. Hayes, District Judge, Presiding
Before: FORREST and SANCHEZ, Circuit Judges, and FREUDENTHAL, [**] District Judge.
MEMORANDUM [*]
Mr. Virgil Lorenzo was terminated from his position as a middle school science teacher at a Department of Defense school in Okinawa, Japan. Lorenzo appeals the district court's grant of summary judgment against his claim under Title VII, 42 U.S.C. § 2000e et seq., that he was terminated because of his Filipino nationality, and his claim under the Rehabilitation Act, 29 U.S.C. § 794(a), that he was terminated because of his actual or perceived hearing impairment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The current Secretary of Defense, Lloyd J. Austin III, was automatically substituted as Defendant on January 22, 2021, pursuant to Fed.R.Civ.P. 25(d).
1. When responding to a summary judgment motion, the plaintiff may establish his or her case "by using the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer]." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). Under either approach, Lorenzo "must produce some evidence suggesting that [his termination] was due in part or whole to discriminatory intent, and so must counter [Defendant's] explanation." Id. Because Lorenzo has not produced evidence suggesting discriminatory intent and does not counter Defendant's reasons for termination, his claim fails under either approach. See id. at 1123; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
Lorenzo's argument is based on an email that he received from the principal on September 23, 2010. It reads:
Mr. Lorenzo, Please contact [parent] about setting up a conference to discuss [student]. She has some concern's [sic] about your accent and [student] understanding some of the concepts covered. Thank you.
Lorenzo has failed to connect any animus held by the parent to the principal who decided to terminate Lorenzo. The text of the email conveys only that the principal wanted Lorenzo to meet with a parent who believed her child was having difficulty understanding Lorenzo's accent in class-a facially legitimate concern. See Fragante v. City and Cnty. of Honolulu, 888 F.2d 591, 596-97 (9th Cir. 1989) (explaining that, regarding an employee's accent, "[t]here is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance" (emphasis omitted)).
Lorenzo's statements about his meetings with the parent cannot establish the connection. There is no evidence that the principal knew about the events of Lorenzo's first meeting with the parent during which she displayed an "air of superiority" and "wondered aloud why a middle school would hire someone with [Lorenzo's accent]," or that the principal knew about Lorenzo's second meeting with the parent when she became irate.
Moreover, temporal proximity does not indicate causation under the circumstances. Since Lorenzo's probationary employment lasted only four months, the events at issue generally occur as close to his August 10, 2010, hiring as to his December 17, 2010, termination. Moreover, the September 23 "accent" email was sent after the principal had already began giving Lorenzo "support and specific directions." Further, the school received a number of other parent and student concerns regarding Lorenzo's teaching practices that were unrelated to Lorenzo's accent. The school's termination decision followed a reasonable chronology of escalating support, counseling, and intervention.
Finally, Lorenzo fails to demonstrate a genuine dispute of material fact that the employer's proffered nondiscriminatory reasons for termination-failure to monitor and assess student achievement-were pretextual. Additionally, the discrete instances raised by Lorenzo in his post-termination meeting fail to contradict the principal's documented assessment of Lorenzo's poor performance. The record is replete with evidence that Lorenzo failed to meet the requirements of his employment.
We need not address the "same actor" presumption because Lorenzo's Title VII claim fails even without it. See generally Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996).
2. Even assuming Lorenzo has established the first two elements of his Rehabilitation Act Claim, he cannot establish that he was terminated because of his disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).
Rehabilitation Act claims are evaluated under the same standards as the Americans with Disabilities Act (ADA). Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (citing 29 U.S.C. § 794(d)).
Lorenzo relies on an incident in November 2010, when a student's cell phone chimed during the principal's observation of Lorenzo's class. Lorenzo argues that the principal excoriated him for not taking the phone, but the record fails to show that the principal's response related to Lorenzo's diminished hearing. Rather, the record supports the principal's conclusion that "[Lorenzo] heard the cell phone. He reacted to the cell phone. He just didn't manage the cell phone."
Under the circumstances, temporal proximity does not create an inference of causation. As noted above, the principal's escalating support, counseling, and intervention were ongoing by the time of the cell phone incident.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.