FILED

NOT FOR PUBLICATION

DEC 10 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP FRAZIER, No. 23-55508

Plaintiff-Appellant, D.C. No. 2:22-cv-04723-JFW-JEM v.

AMERICAN AIRLINES, INC., a MEMORANDUM* Delaware corporation; MOANA JEREMIA, an individual; DOES, 1 through 10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Submitted December 10, 2024** San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Phillip Frazier appeals pro se from the district court’s summary judgment in

his age discrimination action under California's Fair Employment and Housing Act

* 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). and related claims against his former employer, American Airlines (American).

See Cal. Gov’t Code § 12940(a). Frazier claimed that American used its June 2020

COVID-19 Reduction in Force as pretext to terminate Frazier's employment

because of his age. Reviewing de novo,1 we affirm.

The district court did not err in granting American’s motion for summary

judgment on Frazier’s age discrimination claim. See Guz v. Bechtel Nat’l Inc., 8

P.3d 1089, 1113 (2000). Frazier’s prima facie case for age discrimination fails

because he did not create a triable issue of fact regarding whether he was

terminated because of his age. See id. To support his age discrimination claim,

Frazier cited his own opinion and statistics about the employees who were

terminated alongside him in American’s COVID-19 Reduction of Force, but

neither is availing. See Horn v. Cushman & Wakefield W., Inc., 85 Cal. Rptr. 2d

459, 472 (Ct. App. 1999); see also Martin v. Bd. of Trs. of Cal. State Univ., 315

Cal. Rptr. 3d 117, 135 (Ct. App. 2023). Frazier's age discrimination claim fails for

the additional reason that American presented legitimate non-discriminatory

reasons for Frazier's termination that Frazier failed to show were pretextual. See

Kelly v. Stamps.com Inc., 38 Cal. Rptr. 3d. 240, 247 (Ct. App. 2005); see also Guz,

8 P.3d at 1114. We reject Frazier’s belated attempts to supplement the record and 2 23-55508 raise new issues in support of his age discrimination claim on appeal. See Lowry v.

Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003); see also Padgett v. Wright, 587

F.3d 983, 985 & n.2 (9th Cir. 2009) (per curiam).

The district court also correctly entered summary judgment for American on

Frazier's claims for failure to prevent discrimination in violation of California

Government Code § 12940(k) and wrongful termination in violation of public

policy. Both claims are predicated on a showing of discrimination, which Frazier

did not make. See Scotch v. Art Inst. of Cal.-Orange Cnty. Inc., 93 Cal. Rptr. 3d.

338, 367 (Ct. App. 2009); Commodore Home Sys., Inc. v. Superior Court, 32 Cal.

3d 211, 213, 220 (1982); see also Stevenson v. Superior Ct., 941 P.2d 1157,

1162–63 (1997).

Finally, we decline to reinstate Frazier's disability discrimination claims2 that

he conceded should be dismissed in the district court. See CDN Inc. v. Kapes, 197

F.3d 1256, 1258–59 (9th Cir. 1999).

AFFIRMED.

2 Frazier initially brought claims for disability discrimination in violation of California Government Code § 12940(a); failure to accommodate disability in violation of California Government Code § 12940(m)(1); and failure to engage in interactive process in violation of California Government Code § 12940(n).

3 23-55508