NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HWANG, Ph. D., an individual,

Plaintiff

- Appellant,

v. NATIONAL TECHNOLOGY AND ENGINEERING SOLUTIONS OF SANDIA, LLC, a limited liability company,

Defendant

- Appellee. No. 22

- 16396
D.C. No. 3:20

- cv - 08551

- SK

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Sallie Kim, Magistrate Judge, Presiding Argued and Submitted October 18, 2023 San Francisco, California Before: W. FLETCHER, NGUYEN, and R. NELSON, Circuit Judges. Robert Hwang appeals the district court’s grant of summary judgment for his former employer, National Technology and Engineering Solutions of Sandia, LLC (“NTESS”) . We review a grant of summary judgment de novo. MacIntyre v. Carroll Coll. , 48 F.4th 950, 954 (9th Cir. 2022). We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JAN 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

U.S.C. § 1291, and we affirm. 1. To begin, we reject Hwang ’s argument that he plead ed a claim of constructive discharge. While Hwang alleges with specificity t he working conditions he believed were intolerable , the choice he believed was coercive, and th e reason he felt compelled to retire , each of which could support a claim for constructive discharge, he does not take the necessary next step and raise a constructive

- discharge claim. We decline Hwang’s invitation to find that references to a constructive discharge claim in case management filings could fix the absence of such a claim in the complaint

. 2. But even if Hwang had pleaded a constructive discharge claim, t he district

court properly granted summary judgment for NTESS

. “Summary judgment is proper if, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is clearly entitled to judgment as a matter of law.” Munoz v. Mabus , 630 F.3d 856, 860 (9th Cir. 2010). On appeal, Hwang alleges that he was constructively discharged under two theories : intolerable working conditions and coercion. Both fail

. First, t o establish constructive discharge due to intolerable working conditions, an employee must show the employer intentionally permitted working conditions so intolerable that a reasonable person in the employee’s position would have been compelled to resign. Green v. Brennan , 578 U.S. 547, 555 (2016)3

(federal law); Turner v. Anheuser

- Busch, Inc. , 7 Cal. 4th 1238, 1248

- 49 (1994) (state law)

. The working conditions must be so “severe” as to compel a reasonable employee to resign. See Green , 578 U.S. at 558; accord Cloud v. Casey , 76 Cal. App. 4th 895, 90 2 (1999) (“ intolerable or aggravated ”)

. Here, t he evidence is not enough to create a genuine issue of material fact that intolerable working conditions existed. Hwang argues that by December of 2019, working conditions at NTESS had become intolerable. This claim is belied by his attempt to rescind his decision to retire. But even if it were not, Hwang’s arguments are insufficient. Hwang tries to “weave unrelated and disjointed events together” into a pattern, but he does not show a “continuous pattern” of aggravating conditions or discriminat ory conduct. Turner , 7 Cal. 4th at 1255. While he alleges that he faced discrimination including a racist comment , criticism of his posture and demeanor , and false accus ations of missing meetings , these facts, even if true, are not enough to establish constructive discharge. S ee , e.g. , Brooks v. City of San Mateo , 229 F.3d 917, 930 (9th Cir. 2000) ( finding no constructive discharge after a woman quit her job when, after complaining of sexual harassment, she received low performance ratings, was scheduled for bad shifts, and had to work at the same time as the alleged perpetrator). Hwang also complains that he was the only manager forced to work with a coach, he received a poor “Block 9” performance rating , and he was put on a Performance Expectation4

Plan (PEP)

. But Hwang dispute s neither that he received complaints about his behavior and management style in 2016 and 2019 , nor that performance issues were raised with him in his year

- end evaluations. Second, u nder a coercion theory of constructive discharge, an employee

must show that a reasonable person under the same circumstances would feel compelled to retire. Knappenberger v. City of Phoenix , 566 F.3d 936, 941

- 42 (9th Cir. 2009). We consider “whether the employee was given an alternative to resignation or retirement, understood the choice, had a reasonable time in which to decide, or could select the timing.” Id. at 941. Here, Hwang argues that giving him only 24 hours to decide between working on a PEP plan, resigning, or appealing the decision was coercive , particularly because he could not get a timely answer on whether he would lose his benefits if he chose t o contest his termination and was ultimately terminated

. But Hwang opted to retire and even chose his retirement date, setting it for after he used his vacation days. Although we view the 24

- hour time frame given to Hwang as potentially problematic, it is nevertheless not sufficient to show that Hwang did not have a real choice. See Knappenberger, 566 F.3d at 941

- 42 (a choice between “unpleasant alternatives ... does not of itself establish that a resignation was induced by duress or coercion” (citations omitted) )

. In Knappenberger , for example, we consider ed a constructive discharge claim of an employee who chose5

to retire af

ter being given the choice to either retire early (and keep his lifetime health insurance ) or be fired (and lose it). Id. at 9 39

- 42. We held that the employee did not establish that he was coerced or deprived of his free will, even though he felt he needed insurance because his wife had a history of breast cancer

. Id. If those facts failed to show coercion, so do the facts here. Hwang was not forced to choose between retire ment and termination, even though he alleges that he felt termination was inevitable.
3. Finally, the district court properly granted summary judgment on Hwang ’s retaliation claim under Title VII and California’s Fair Employment and Housing Act ( FEHA )

. Hwang argues that NTESS retaliated against him by refusing to accept his rescission of retirement. Hwang ’s decision to retire was accepted by NTESS the same day. NTESS’s re fusal to accept Hwang’s attempt to rescind his retirement a month later was not an adverse action that “materially affect[ed] the compensation, terms, conditions, or priv ileges of [his] employment.” Chuang v. Univ. of Cal. Davis, Bd. of Trustees , 225 F.3d 1115, 1126 (9th Cir. 2000)

. Other courts have held that the “failure to accept the employee’s rescission of [his] voluntary resignation is not an adverse employment action.” Featherstone v. S. California Permanente Med. Grp. , 10 Cal. App. 5th 1150, 1163

- 64 (2017) ( citation omitted ) (collecting cases)

. We agree. This evidence is also not sufficient to create a genuine issue of material fact6

for retaliation under Title VII, which would require Hwang to establish that NTESS’s refusal to accept his retirement rescission would deter a reasonable person from reporting discrimination. Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68 (2006).
AFFIRM ED .