NOT FOR PUBLICATION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.

Plaintiff-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 Douglas’ 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 APPEALS
2 

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 an 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 the causal chain extends back to his 2014 

EEO complaint. There is no record evidence that Douglas’ EEO activity was the 

but-for cause of his termination. See Univ. of Tex. Sw. Med Ctr. v. Nassar, 133 S. 

Ct. 2517, 2534 (2013). Douglas’ speculative arguments about the record 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 activity, 

which is “essential” to show causation. Id. Nor does the timing 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.
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We also reject Douglas’ argument about the invalidity of the entire LCA. In 

essence, Douglas impermissibly seeks to challenge only part of his administrative 

proceedings in federal court and to preclude the Postmaster General from 

relitigating this issue and the administrative decisions below de novo. See 

Chandler v. Roudebush, 425 U.S. 840, 864 (1976); Carver v. Holder, 606 F.3d 

690, 698 (9th Cir. 2010). Deciding 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.

The Postal Service “must be permitted to draw the line somewhere.” Leong 

v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). It properly did so here. Absent a 

causal nexus between Douglas’ protected activity and his termination for violating 

the LCA, we hold that Douglas fails 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 Douglas’ 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 must show but-for causation to prevail on his federal employee age 
4 

discrimination claim. Babb v. Wilkie, 140 S. Ct. 1168, 1177–78 (2020). The LCA 

did not waive the ADEA claim, as the waiver admittedly did not fully comply with 

the Older Workers Benefit Protection Act’s (“OWBPA”) statutory requirements

for binding the employee set forth in 29 U.S.C. § 626(f). Nonetheless, Douglas’ 

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 ADEA 

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). The omission of the OWBPA language occurred in the context of 

giving Douglas another chance at remaining in his postal employment through the 

LCA rather than in the context of his later termination.

The missing OWBPA 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 was 
5 

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 802, 812–13 (9th Cir. 2004) (finding direct evidence of age 

discrimination because insurance policy did not cover employees older than 

seventy). The Postal Service’s failure to comply with the OWBPA predicates to 

bind an ADEA waiver is not a clearly discriminatory action. See Coghlan v. Am. 

Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005). Concluding that the 

Postmaster General violated the OWBPA to obtain the LCA to justify terminating 

Douglas for his age—when the parties agree that Douglas was terminated for 

violating the LCA—requires an additional inference and is thus not direct 

evidence. Id.

With no record evidence of age discrimination, we hold that there is no 

triable issue for Douglas’ ADEA claim. 

AFFIRMED.