NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELWYN ROBINSON, No. 22-55023

Plaintiff-Appellant, D.C. No. 2:19-cv-04033-ODW-RAO v.

PPG INDUSTRIES, INC., a Pennsylvania MEMORANDUM* Corporation; DOES, 1 through 10, Inclusive,

Defendants-Appellees,

and

DAVID SEBOLD,

Defendant.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Argued and Submitted April 20, 2023 Pasadena, California

Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. Elwyn Robinson appeals a district court’s grant of summary judgment, as

well as a number of interlocutory orders, on his claims of age discrimination and

related violations of California’s Fair Employment and Housing Act (“FEHA”)

against PPG Industries, Inc. (“PPG”) and David Sebold, a PPG employee

responsible for hiring workers at a sealant production facility in Mojave. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm the district court orders denying

Robinson’s motion for remand, motion to strike late-filed pleadings, and motion

for a continuance. While we affirm the grant of summary judgment on Robinson’s

retaliation claim, we reverse the grant of summary judgment to PPG on Robinson’s

age discrimination and failure to prevent age discrimination claims.

1. As Robinson’s case arose under federal diversity jurisdiction, the district

court properly denied Robinson’s motion to remand the case to state court. The

district court correctly established that Robinson, a resident of California, and PPG

Industries, a company with its “principal place of business” in its Pittsburgh

headquarters, had complete diversity of citizenship. See Hertz Corp. v. Friend,

559 U.S. 77, 93 (2010). Robinson offered no evidence to “cast doubt” on PPG’s

showing that the “nerve center,” id., of its worldwide operations is in Pittsburgh.1

Moreover, the district court did not err when it concluded that Sebold had

1 Robinson’s motion to supplement the record on appeal and take judicial notice of additional evidence that PPG’s principal place of business is located in California (Dkt. 20) is DENIED.

2 been fraudulently joined in the action to defeat diversity jurisdiction, as Robinson

“fail[ed] to state a cause of action against a resident defendant, and the failure

[wa]s obvious according to the settled rules of the state.” Morris v. Princess

Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (quoting McCabe v. Gen. Foods

Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). Robinson asserted only a harassment

claim against Sebold, citing a remark made not to Robinson, but to Ron Lyndon,

an independent recruiter, that Robinson might be “too senior” for two open

positions at PPG. One isolated remark fails to meet the FEHA standard for

harassment, which requires a “pattern . . . of a repeated, routine or a generalized

nature,” not something “occasional, isolated, sporadic, or trivial.” Aguilar v. Avis

Rent A Car Sys., Inc., 980 P.2d 846, 851 (Cal. 1999) (internal quotation marks

omitted). Additionally, a claim for hiring discrimination under the FEHA is

actionable against the employer only, not against individual decisionmakers

involved in the hiring decision. Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55,

66 (1996). As Robinson’s failure to state a claim was therefore obvious according

to settled law, there was no error in the district court’s conclusion that Sebold had

been fraudulently joined.

Finally, Robinson asked for $2 million in damages in his complaint, which

vastly exceeds the $75,000 threshold for diversity jurisdiction. See 28 U.S.C.

§ 1332(a); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 375 (9th Cir.

3 1997) (holding that the amount in controversy is determined by what is sought in

the complaint).

2. The district court did not abuse its discretion when it issued its orders

striking filings and declining to grant a continuance under Fed. R. Civ. P. 56(d) for

the purpose of reopening discovery. Robinson had almost ten weeks to prepare his

opposition papers to PPG’s motion for summary judgment, yet still failed to timely

file them. Moreover, the district court reviewed the late-filed papers and ruled, in

the alternative, that those papers raised no genuine issue of fact. Nor did the

district court abuse its discretion by striking and refusing to consider a “Corrected

Separate Statement”—in essence, a sur-reply—that Robinson’s counsel filed after

PPG had already submitted its reply papers in support of the summary judgment

motion. The district court correctly noted that the record was closed before this

“Corrected Separate Statement” was filed, and ruled that PPG would suffer

substantial prejudice if it had to file another set of papers opposing a belated filing

on Robinson’s part.

Finally, the district court did not abuse its discretion in refusing to continue

PPG’s motion for summary judgment so that Robinson could take additional

discovery. “The district court does not abuse its discretion by denying further

discovery if the movant has failed diligently to pursue discovery in the past, or if

the movant fails to show how the information sought would preclude summary

4 judgment.” Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278

(9th Cir. 1990) (citations omitted). Robinson had not diligently pursued discovery

in the past, and the district court did not err in finding that the “additional”

discovery he sought would have been duplicative.

3. We affirm the grant of summary judgment on Robinson’s retaliation claim

under the FEHA. To establish retaliation under the FEHA, Robinson was required

in part to show that he was “engaged in activities protected by the FEHA.” Miller

v. Dep’t of Corr., 115 P.3d 77, 94 (Cal. 2005). Robinson argues that he engaged in

“protected activity” when he sent the following email to Lyndon on October 15,

2018, in response to Lyndon’s email telling Robinson that Sebold was “concerned

about [Robinson] being too senior for the role”:

I understand. I believe being too senior is the battle I am having everywhere I interview. If they are looking for someone who will be around for 20 years, I am not that guy as I am now 60 years old but I do not have any health issues. I will wait to hear what you find out.

Even if this email was “sufficient to put an employer on notice as to what conduct

it should investigate,” Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1133 (Cal.

2005), Robinson did not present any evidence that anyone at PPG knew about his

email, because Lyndon was not PPG’s agent. As a result, the email could not have

occasioned any retaliatory conduct by PPG.

4. However, we reverse the grant of summary judgment on Robinson’s age

discrimination claim on two grounds. First, Robinson established a genuine

5 dispute of material fact by offering “direct evidence” of age discrimination, or

“evidence which, if believed, proves the fact [of discriminatory animus] without

inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221

(9th Cir. 1998) (alteration in original) (quoting Davis v. Chevron, U.S.A., Inc., 14

F.3d 1082, 1085 (5th Cir. 1994)). Robinson testified that, during his telephone

interview on October 10, 2018, Sebold said he was “trying to find somebody

younger that he could develop into a role.” While Sebold denied making that

statement, PPG conceded that the statement was made for purposes of its summary

judgment motion. Viewed in the light most favorable to Robinson, the statement

“trying to find somebody younger” constitutes direct evidence of discrimination

and creates a triable issue of fact as to whether “discriminatory animus” affected

the hiring decision. See DeJung v. Superior Ct., 87 Cal. Rptr. 3d 99, 111 (Cal. Ct.

App. 2008).

Sebold’s comment about Robinson’s being “too senior” also factors into our

analysis. California courts have ruled that references to seniority do not

necessarily mean age. See O’Mary v. Mitsubishi Elecs. Am., Inc., 59 Cal. App. 4th

563, 581, 69 Cal. Rptr. 2d 389, 401 (1997) (“Seniority qua seniority is not to be

simplistically equated with “age” in an age discrimination suit.”); see also

Goodman v. Raytheon Co., No. B252818, 2014 WL 6438725, at *10 (Cal. Ct. App.

Nov. 17, 2014) (noting that “[u]se of senior . . . , standing alone, is not a negative,

6 age-related comment” (emphasis added)). But in this case the phrase “too senior”

does not stand alone; there is other evidence in the record from which a trier of fact

could conclude that Sebold actually meant “too old.” Lyndon’s email suggests that

Sebold also consulted with PPG’s Human Resources office about Robinson’s

being “too senior.” PPG did not tell Robinson that it would not be hiring him until

October 23, 2018, over a week after Sebold learned, via the email exchange with

Lyndon on October 15, 2018, that Robinson was 60 years old. Finally, the phrase

“too senior” must be viewed in the context of the “trying to find somebody

younger” remark. This evidence, viewed in the light most favorable to Robinson,

creates a genuine issue of material fact as to whether Sebold meant “too old” when

he said “too senior,” and so did not hire Robinson because of his age. See

Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038–39 (9th Cir. 2005)

(holding that the district court erred in finding employer’s “going to hire a guy”

statement ambiguous, because the context of the statement included “other sexist

remarks” and “all inferences must be drawn in favor of the non-moving party”

(quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1129 (9th Cir.

2000))).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.2

2 We also reverse the district court’s grant of summary judgment on Robinson’s failure to prevent discrimination claim in violation of the FEHA, as it was predicated solely on the grant of summary judgment on Robinson’s other claims.

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