NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD PINEDA,

Plaintiff-Appellant, 

 v. 

ABBOTT LABORATORIES INC., DBA 

Abbott Nutrition, DBA Abbott Sales, 

Marketing Distribution Co., a corporation; et 

al., 

Defendants-Appellees.

No. 19-55019 

D.C. No. 

2:18-cv-03395-SVW-RAO 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted August 19, 2020

Pasadena, California

Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,**Judge.

Ronald Pineda appeals the district court’s denial of his motion to remand to 

state court and dismissal on summary judgment of his claims that Abbott 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Gary S. Katzmann, Judge for the United States Court 

of International Trade, sitting by designation.

FILED

OCT 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-55019 

Laboratories (“Abbott”) failed to accommodate his disabilities, discriminated 

against him on the basis of age and disability, and engaged in retaliation. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial 

of the motion to remand, Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1047 

(9th Cir. 2015), and the district court’s grant of summary judgment, Sonner v.

Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). We affirm the district 

court’s denial of remand and grant of summary judgment on the reasonable 

accommodation, disability discrimination, and retaliation claims under the Fair 

Employment and Housing Act (“FEHA”). We reverse summary judgment on the 

age discrimination claim.

1. The district court properly held that Abbott met its burden of showing 

that Pineda did not sufficiently plead harassment and intentional infliction of 

emotional distress (“IIED”) claims against Alex Mazzenga, the only non-diverse 

defendant. The district court thus properly denied the motion to remand to state 

court because diversity was complete. 28 U.S.C. § 1332.

Pineda failed to allege facts in his complaint sufficient to plead a harassment 

claim. Mazzenga’s alleged conduct arose “out of the performance of necessary 

personnel management duties,” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55,

63–64 (1996), and did not rise to the level of the pervasive hostility recognized by 

the California Supreme Court in Roby v. McKesson Corp., 47 Cal. 4th 686, 709 
3 19-55019 

(2009), as modified (Feb. 10, 2010). Additionally, Pineda did not allege facts 

sufficient to plead the outrageous conduct required for a claim of IIED. See Cole 

v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 160 (1987).

The district court ruled on the motion for remand on the basis of the 

complaint before it. Pineda cites no case law requiring the district court to allow 

Pineda to amend his complaint with respect to the fraudulently joined, non-diverse 

defendant upon denial of remand. We affirm the district court’s denial of remand 

to state court.

2. The district court properly granted summary judgment for Abbott on 

Pineda’s reasonable accommodation claim. It is undisputed that, following 

Pineda’s traumatic brain injury, Abbott provided Pineda with eleven out of twelve 

accommodations requested during the interactive process. Pineda argues that 

Abbott failed to provide the twelfth requested accommodation, four-hour work 

days for a period of six weeks. The record, however, makes clear that Abbott 

accommodated a four-hour work day for an initial two-week period, after which 

Pineda’s doctor cleared him to return to full-time work. Pineda testified that he did 

not disagree with what his doctor wrote. The record, therefore, establishes that 

Pineda did not need the full requested accommodation of six weeks of part-time 

work, and thus that Abbott did not unreasonably deny it. We affirm the district 
4 19-55019 

court’s grant of summary judgment for Abbott on the reasonable accommodation 

claim.

3. The district court properly granted summary judgment for Abbott on 

Pineda’s disability discrimination claim. Pineda made a sufficient showing that he 

suffered from a disability and is otherwise qualified for his position, but he failed 

to present a genuine issue of material fact as to whether “he was subjected to 

adverse employment action because of his disability.” Faust v. Cal. Portland 

Cement Co., 150 Cal. App. 4th 864, 886 (2007) (quoting Deschene v. Pinole Point 

Steel Co., 76 Cal. App. 4th 33, 44 (1999)). 

To show he was subjected to an adverse employment action because of his 

disability, Pineda points to (1) a supervisor’s criticism of him for sighing, (2) a 

supervisor’s comments on his performance at meetings, (3) an email from his 

supervisor that his medical leave put him further behind on performance, (4) an 

alleged deficiency in Abbott’s discrimination investigation with respect to failing 

to interview his supervisor, and (5) Abbott’s termination of him after his medical 

leaves. However, it is undisputed that the supervisor was unaware of any disability 

when criticizing Pineda for sighing; nothing in the comments about meeting 

performance by a second supervisor suggested disability discrimination; and the 

email was a true factual statement and expressed support for Pineda during a tough 

time, context which Pineda failed to include in his briefs. The alleged procedural 
5 19-55019 

misstep in the investigation falls far short of showing discrimination based on

disability, pertained to a different disability than the one at issue immediately prior 

to his termination, and was far in time from the termination. Lastly, it is 

undisputed that Abbott initiated the first performance improvement plan, the 

precursor to his termination, before Pineda took medical leave and informed 

Abbott of his disabilities. Pineda presents no record evidence raising a genuine 

issue as to whether any of Abbott’s comments or actions were discriminatory

toward his disabilities, and more importantly, presents no record evidence tying the 

adverse employment action, termination, to the disability at issue in late 2016 and 

early 2017, his traumatic brain injury. We thus affirm the district court on this 

claim.

4. The district court properly granted summary judgment for Abbott on 

Pineda’s retaliation claims because Abbott established that no genuine issue of 

material fact exists as to whether Pineda could make a showing of pretext.

Even assuming arguendo that Pineda made a prima facie case, we conclude 

that the district court correctly held that he failed to raise a triable issue of fact as to 

whether Abbott’s proffered non-retaliatory motive, poor performance, was a

pretext for retaliation. As evidence of pretext, Pineda points to his supervisor’s 

role in his termination, alleged defects in Abbott’s investigations into his 

complaints, allegations that younger employees were treated differently, Abbott’s 
6 19-55019 

alleged failure to train his supervisor on retaliation policies, the timing of his 

termination, and his history of strong performance. Pineda, however, does not

point to any evidence that his poor performance reviews did not predate the 

protected activity or that Abbott did not investigate all his complaints but one

(which was far-removed in time from his termination and was made to a supervisor 

instead of to Employee Relations). The protected activity responded to two 

strongly negative performance evaluations; such evaluations, the record indicates, 

are usually followed by discipline or termination, negating an inference of 

pretextual retaliation for the post-evaluations protected activity. 

Lastly, to establish pretext, Pineda points to a history of strong performance. 

But that history involved accomplishments prior to and during 2011, well before 

the protected activity. 

As there is no record evidence presenting a genuine issue of material fact as 

to whether Abbott took an adverse employment action against Pineda in retaliation 

for protected activity, we affirm the grant of summary judgment for Abbott on the 

retaliation claim.

5. The district court erred by granting summary judgment for Abbott on 

Pineda’s age discrimination claim. Pineda made a prima facie showing as to age 

discrimination, and genuine disputes of material fact exist as to pretext on that 

claim.
7 19-55019 

Pineda has satisfied the first three criteria for a prima facie case of age 

discrimination under the FEHA. Pineda was over 40 and suffered an adverse 

employment action, and Abbott does not challenge his ability to “demonstrate 

some basic level of competence at his . . . job . . . based on objective, rather than 

subjective, criteria.” Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321–22

(2010). 

The district court applied the wrong standard in holding that Pineda failed to 

satisfy the fourth criterion, that the termination occurred under circumstances 

suggestive of unlawful discrimination. See id. at 321. To satisfy the fourth prong 

at the prima facie stage, the record evidence need only show that Pineda was 

replaced by a substantially younger employee or that a genuine dispute exists as to 

whether this was the case. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 

917 (9th Cir. 1996); Sandell, 188 Cal. App. 4th at 321; Hersant v. Dep’t of Social 

Services, 57 Cal. App. 4th 997, 1003 (1997). Here, the parties do not dispute that 

Pineda “was replaced by a younger female—who is younger than forty—after he 

was terminated.” Abbott, therefore, cannot meet its burden of showing that the 

record does not support a prima facie case of age discrimination.

Because the parties do not dispute that Abbott can produce admissible 

evidence to show the adverse employment action was taken for non-discriminatory

reasons and can thereby satisfy the second step of the McDonnell Douglas
8 19-55019 

framework, we proceed to the third step: Did Pineda raise a triable issue of fact as 

to whether Abbott’s proffered reason for terminating Pineda is pretext? See Earl v.

Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011); Guz v. Bechtel

Nat. Inc., 24 Cal. 4th 317, 355–56 (2000). By giving great weight to subjective, 

cumulative performance reviews and failing to account for conflicting “me too” 

evidence and accounts of bias, the district court erred in concluding that there was 

no genuine dispute of material fact as to whether Abbott’s non-discriminatory 

rationale was pretextual.

Complaints and performance evaluations are “often subjective” and may be 

“motivated by discriminatory animus.” Sandell, 188 Cal. App. 4th at 316. The 

record evidence demonstrates that, on some (but not all) objective criteria, Pineda 

performed poorly, and Abbott is correct that such evidence could persuade a 

reasonable jury to find that Abbott’s actions were not pretextual. But there is 

additional evidence in the record that could lead a rational jury to find pretext, and 

summary judgment was therefore improper.

For example, as to the negative evaluations, Pineda challenged some of the 

examples set forth in his performance reviews at the time, but his supervisors did 

not respond to his emails containing the challenges. Pineda also argued at the time 

and maintains now that at least one of the goals set forth in his performance 

improvement plan, conversion of the Kaiser account in the immediate future, was 
9 19-55019 

intended to set him up to fail. Although that goal was changed, a factfinder could 

still infer a pretextual motive from the fact that it was established at the outset. 

Additionally, “me too” evidence—here, declarations by other employees, 

including two supervisors, alleging adverse employment actions against other 

employees for discriminatory reasons—may “constitute substantial evidence 

requiring reversal of [summary] judgment.” Johnson v. United Cerebral 

Palsy/Spastic Children’s Found. of Los Angeles & Ventura Ctys., 173 Cal. App. 

4th 740, 759 (2009). The record contains such evidence, although some of it was 

qualified by the declarants in later declarations. Contrary to what Abbott suggests, 

the submission of those later declarations does not eliminate the need for a trial to 

sort out the importance of this evidence. 

Similarly, an executive within the organization stated in a declaration that 

she was instructed to “manage out” more senior, higher salaried employees who 

were usually older—by inventing performance problems and assigning 

unattainable goals. She later, in another declaration, retracted one paragraph of the 

declaration and made statements qualifying other parts of her original declaration. 

The conflicting accounts by the five declarants create a credibility question 

regarding the weight to be accorded the contradictory evidence they provided, one 

best suited for trial. Although Abbott asserts that the “me too” declarations are not 

relevant because two of the declarants did not share any of Pineda’s supervisors, 
10 19-55019 

two of the declarants did share supervisors, and all of the declarations may offer 

relevant information about organizational practices. The conflicting declarations 

with “me too” evidence and evidence of biased policies, coupled with the 

subjective nature of the performance evaluations, create a genuine issue of material 

fact as to pretext for discriminatory animus such that summary judgment on the 

age discrimination claim was improper.

For the foregoing reasons, the district court’s denial of remand to state court 

is affirmed; the district court’s grant of summary judgment for Abbott as to the 

reasonable accommodation, disability discrimination, and retaliation claims is 

affirmed; and the district court’s grant of summary judgment as to the age 

discrimination claim is reversed.

The parties shall bear their own costs on appeal.

AFFIRMED in part and REVERSED in part.