Renaldo Navarro v. MENZIES AVIATION, INC., DBA Menzies

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENALDO NAVARRO,
Plaintiff-Appellant,
v.
MENZIES AVIATION, INC., DBA
Menzies,
Defendant-Appellee.
No. 21-15355
D.C. No. 3:19-cv-08157-VC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Submitted April 11, 2022**
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and MORRIS,*** District Judge.
In this diversity action, Renaldo Navarro alleges that his former employer,
FILED
MAY 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.

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Menzies Aviation, Inc. (Menzies), violated the California Fair Employment
Housing Act (FEHA) and California public policy by terminating him based on his
race and national origin and by retaliating against him for raising concerns about
another fueling supervisor. He also alleges that his termination constituted
intentional infliction of emotional distress (IIED). The district court granted
summary judgment to Menzies. We affirm.
1. For the first time in his opposition to the motion for summary
judgment, Navarro raised allegations that the fueling supervisor harassed Filipino
fuelers and Menzies was aware of and disregarded such harassment. After
considering supplemental briefing on whether to reopen discovery, the district
court declined to reopen discovery and refused to consider the new allegations.
The district court did not abuse its discretion by refusing to consider Navarro’s
new allegations. See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945 F.3d
1076, 1086–87 (9th Cir. 2019) (“[I]f the complaint does not include the necessary
factual allegations to state a claim, raising such claim in a summary judgment
motion is insufficient to present the claim to the district court.” (quotations
omitted) (quoting Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th
Cir. 2008))); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th
Cir. 2006) (rejecting factual averments raised for the first time in opposition to
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summary judgment). Nor did the district court abuse its discretion in refusing to
reopen discovery. Navarro failed to show that he diligently pursued discovery and
that reopening discovery would have precluded summary judgment. See
Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002).
2. The district court did not err in granting summary judgment to
Menzies. Navarro’s FEHA discrimination claim fails because he did not show that
a similarly situated individual was treated more favorably or that Menzies’ reason
for his termination—that Navarro harassed fuelers into signing a petition against
another fueling supervisor—was pretextual. See Vasquez v. Cty. of L.A., 349 F.3d
634, 641–42 (9th Cir. 2003), as amended (Jan. 2, 2004). Navarro’s FEHA
retaliation and wrongful termination against public policy claims fails for a similar
reason—he failed to show that Menzies’ non-retaliatory reason for his termination
was pretextual. Finally, Navarro’s IIED claim fails because he failed to show that
Menzies’ conduct was extreme or outrageous. See Light v. Dep’t of Parks &
Recreation, 221 Cal. Rptr. 3d 668, 689 (2017).
AFFIRMED.
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