NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VAN DOUGLAS, Jr.,

Plaintiff

- Appellant,

v. LOUIS DEJOY, Postmaster General; DOES, 1

- 10, inclusive,
Defendants

- Appellees. No. 19

- 56518
D.C. No. 2:18

- cv - 09657

- MWF

- MAA

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding Argued and Submitted February 10, 2021

Pasadena, California Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.
Plai ntiff

- Appellant Van Douglas, Jr. (“Douglas”) , a former postal worker, appeals the district court’s entry of summary judgment for Defendant

- Appellee Louis DeJoy (“Postmaster General”) dismissing Doug las’ federal retaliation and age discrimination claims

. We have jurisdiction under 28 U.S.C. § 1291 , and on de novo review , we affirm.

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

- 3. 

# FILED

MAR 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

1. Douglas raises no triable issue for his retaliation claim. A prima facie retaliation case requires the plaintiff to first show: (1) he engaged in a protected activity; (2) suffered a n adverse employment action; and (3) a causal nexus between the protected activity and the adverse employment action. Villiarimo v. Aloha Island Air, Inc. , 281 F.3d 1054, 1064 (9th Cir. 2002) (internal citation omitted) . Only element three is at issue here. We reject Douglas’ argument that th e causal chai n extends back to his 2014 EEO complaint. There is no record evidence that Douglas ’ E EO activity was the
but

- for cause of his termination. See Univ. of Tex. Sw. Med Ctr. v
. N assar , 133 S. Ct. 2517, 2534 (2013). Douglas’ speculative arguments about the r ecord are not “sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Cohen v. Fred Meyer, Inc. , 686 F.2d 793, 796 (9th Cir. 1982). He fails to establish the decisionmaker ’ s knowledge of his EEO act ivity,
which is “essential ” to show causation

. Id. Nor does the tim ing alone between Douglas’ protected EEO activity in January 2014 and his termination in February
2015 for violating the terms of his last chance settlement agreement (“LCA”) permit an inference of causation. See Villiarimo , 281 F.3d at 1065. Instead, the parties agree on the material fact that Douglas was terminated for violating the
LCA

. In other words, but for Douglas’ violations of the postal rules and conditions
in the LCA, he would not have been terminated.3

We also reject Douglas’ argument about the in validity of the entire LCA. In

essence, Douglas impermissibly seeks to challenge only part of his administrative proceedin gs in federal court and to preclude the Postmaster General from relitigating this issue and the administrative decision s below de novo

. See Chandler v. Roudebush , 425 U.S. 840, 8 64 (1976); Carver v. Holder , 606 F.3d 690, 69 8 (9th Cir. 2010)

. D eciding this action , however, does not turn on this nugatory argument , which goes to pretext

. Douglas did not meet his burden to
show a prima facie retaliation case in the first instance. Notwithstanding the LCA’s validity, the record still fails to show an unbroken chain of causation back to January 2014

. And Douglas stipulates to the fact the Postal Service terminated his employment for violating the LCA’s terms

. T he Postal Service “must be permitted to draw the line so mewhere

. ” Leong
v. Potter , 3 47 F.3d 1117, 1124 (9th Cir. 2003). It properly did so here. Absent a causal nexus between Douglas’ protected activity and his termination f or violating
the LCA , we hold that Douglas fai ls to show a prima facie case of retaliation and
thus there is no triable issue for this claim.
2. Likewise, there is no triable issue for Do ug las’ Age Discrimination in Employment Act (“ADEA”) claim under 29 U.S.C. § 633a. Douglas seeks damages and other relief related to “the end result of an employment decision” and
therefore mu st show but

- for causation to prevail on his federal employee age4

discrimination claim. Babb v. Wilkie , 140 S. Ct. 1168, 117 7

– 7 8 (2020). The LCA
did not waive the ADEA claim , as the waiver admittedly did not fully comply with
the Old er Workers Benefit Protection Act’s (“OWBPA”) statutory requirements for binding the employee set forth in 29 U.S.C. § 626(f). Nonetheless , Dougl as’ argument that the LCA’s noncompliance with the OWBPA constitutes direct
evidence supporting an inference of age discrimination is unavailing. Here, the absence of the OWBPA statutory language in the LCA , without

more, does not constitute direct evidence of age discrimination because the OWBPA “governs the effect under federal law of waivers or releases on ADE A
claims

. . . . ” Oubre v. Entergy Ops., Inc. , 522 U.S. 422, 427 (1998) (emphasis added); see also Harmon v. Johnson & Johnson , 549 F. App’x 687, 687

– 88 (9th Cir. 2013) . T he omission of the OWBPA language occurred in the context of giving Douglas a nother chance at remaining in his postal employment through the
LCA rather tha n in the context of his later termination.
The missing OWBP A language harmed the Postmaster General to the extent it preserved Douglas’ ADEA claim. As a matter of law, the omission of OWBPA language alone here is not direct evidence of discrimination to withstand summary judgment because , on its face, the LCA did not condition, require, or limit anything based on age

. Cf. Trans World Airlines, Inc. v. Thurston , 469 U.S. 111 , 121 (1985) ( finding direct evidence of discrimination where airline’s policy was5

discriminatory on its face because “the method of transfer available to a disqualified captain depends upon his age” ) ; Enlow v. Salem

- Keizer Yellow Cab Co., Inc. , 389 F.3d 8 02, 812

– 13 (9th Cir. 2004) ( finding direct evidence of age
discrimination because insurance policy did not cover employees older than seventy). Th e Postal Service’s failure to compl y with the OWBPA predicates to
bind an ADEA waiver is not a clearly discri minatory actio n. See Coghlan v. Am. Seafoods Co . LLC , 413 F.3d 1090, 1095 (9th Cir. 2005). Concluding that the
Postmaster General violate d the OWBPA to obtain the LCA to justify terminating Douglas for his age

—

when the parties agree that Douglas wa s terminated for violating the LCA

—

requires an additional inference and is thus not direct
evidence. Id.
With no record evidence of age discrimination , w e hold that there is n o triable issue for Douglas’ ADEA claim.
AFFIRMED.