Raymond Vincent NIDDS, Plaintiff-Appellant, v. SCHINDLER ELEVATOR CORPORATION, Defendant-Appellee

103 F.3d 854 96 Cal. Daily Op. Serv. 9374 , 96 Daily Journal D.A.R. 15,433 Raymond Vincent NIDDS, Plaintiff-Appellant, v. SCHINDLER ELEVATOR CORPORATION, Defendant-Appellee. No. 95-15090. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 15, 1996. Decided Dec. 24, 1996. For Superseding Amended Opinion, see 1996 WL 880609 . Kendra L. Tanacea, San Francisco, CA, for plaintiff-appellant. Rebecca Hull, Cynthia H. Plevin, Sedgwick, Detert, Moran & Arnold, San Francisco, CA, for defendant-appellee. Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-92-02177-VRW. Before: SNEED, JOHN T. NOONAN, Jr., and THOMPSON, Circuit Judges. Opinion by Judge SNEED; Dissent by Judge JOHN T. NOONAN, Jr. SNEED, Circuit Judge: 1 Raymond Vincent Nidds appeals the grant of summary judgment in favor of his former employer, Schindler Elevator Corp. ("Schindler"), on his California Fair Employment and Housing Act ("FEHA") discrimination and retaliation claims. Federal jurisdiction is based on the parties' diversity of citizenship. Nidds also contests the district court's refusal to continue…

Opinion by Judge SNEED; Dissent by Judge JOHN T. NOONAN, Jr.

Raymond Vincent Nidds appeals the grant of summary judgment in favor of his former employer, Schindler Elevator Corp. (“Schindler”), on his California Fair Employment and Housing Act (“FEHA”) discrimination and retaliation claims. Federal jurisdiction is based on the parties’ diversity of citizenship. Nidds also contests the district court’s refusal to continue discovery before ruling on Schindler’s summary judgment motion. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I.

BACKGROUND OF THE DISPUTE

Nidds was a highly experienced, 54-year-old elevator service mechanic when he was hired by Schindler on June 13, 1988, and assigned to a downtown San Francisco service route. He was well-liked by his customers and his employer. Sometime in 1989 or 1990, Schindler’s District Service Supervisor, Darrel Graham, allegedly told another service mechanic that he intended to get rid of all the “old timers” because they would not “kiss my ass.” On October 5, 1990, Nidds and two other service mechanics were laid off. Graham wrote a favorable letter of recommendation for Nidds, and assured him that he would be…

dissenting:

We all agree that the district court erred in finding that Nidds had not made a prima facie case. He had, and the burden shifted to Schindler to produce a nonpretextual nondiscriminatory reason for his discharge. What we disagree about is whether Nidds produced enough evidence from which a reasonable juror could have inferred that Schindler’s reason was pretextual and that in fact it laid him off because of his age.

Nidds had two witnesses (not one, as the court appears to assume) whose evidence was that Graham, the district superintendent, wanted to get rid of the “Old Timers.” The court in its opinion suggests that Graham’s comment was “ambiguous.” There was not much ambiguity about it. That the Old Timers would not kowtow to Graham was connected by him to their length of service; and length of service in this industry meant being over forty. In his comment to Julia Stuart, Schindler’s Assistant Field Supervisor, Graham said that he wanted to replace the Old Timers with “new blood” — another distinct reference to age. Even if I agreed with the court that the remark was ambiguous, a reasonable juror could resolve whatever ambiguity there is by an inference in Nidds’…