FILED

NOT FOR PUBLICATION

MAY 16 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENALDO NAVARRO, No. 21-15355

Plaintiff-Appellant, D.C. No. 3:19-cv-08157-VC

v.

MEMORANDUM*

MENZIES AVIATION, INC., DBA

Menzies,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted April 11, 2022** San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and MORRIS,*** District Judge.

In this diversity action, Renaldo Navarro alleges that his former employer,

* 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). *** The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. Menzies Aviation, Inc. (Menzies), violated the California Fair Employment

Housing Act (FEHA) and California public policy by terminating him based on his

race and national origin and by retaliating against him for raising concerns about

another fueling supervisor. He also alleges that his termination constituted

intentional infliction of emotional distress (IIED). The district court granted

summary judgment to Menzies. We affirm.

1. For the first time in his opposition to the motion for summary

judgment, Navarro raised allegations that the fueling supervisor harassed Filipino

fuelers and Menzies was aware of and disregarded such harassment. After

considering supplemental briefing on whether to reopen discovery, the district

court declined to reopen discovery and refused to consider the new allegations.

The district court did not abuse its discretion by refusing to consider Navarro’s

new allegations. See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945 F.3d

1076, 1086–87 (9th Cir. 2019) (“[I]f the complaint does not include the necessary

factual allegations to state a claim, raising such claim in a summary judgment

motion is insufficient to present the claim to the district court.” (quotations

omitted) (quoting Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th

Cir. 2008))); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th

Cir. 2006) (rejecting factual averments raised for the first time in opposition to

2 summary judgment). Nor did the district court abuse its discretion in refusing to

reopen discovery. Navarro failed to show that he diligently pursued discovery and

that reopening discovery would have precluded summary judgment. See

Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002).

2. The district court did not err in granting summary judgment to

Menzies. Navarro’s FEHA discrimination claim fails because he did not show that

a similarly situated individual was treated more favorably or that Menzies’ reason

for his termination—that Navarro harassed fuelers into signing a petition against

another fueling supervisor—was pretextual. See Vasquez v. Cty. of L.A., 349 F.3d

634, 641–42 (9th Cir. 2003), as amended (Jan. 2, 2004). Navarro’s FEHA

retaliation and wrongful termination against public policy claims fails for a similar

reason—he failed to show that Menzies’ non-retaliatory reason for his termination

was pretextual. Finally, Navarro’s IIED claim fails because he failed to show that

Menzies’ conduct was extreme or outrageous. See Light v. Dep’t of Parks &

Recreation, 221 Cal. Rptr. 3d 668, 689 (2017).

AFFIRMED.

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