Sandra J. Harmon v. Johnson & Johnson, a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA J. HARMON,
Plaintiff - Appellant,
v.
JOHNSON & JOHNSON, a Delaware
corporation; JOHNSON & JOHNSON
SALES AND LOGISTICS COMPANY, a
Delaware corporation; NEUTROGENA
CORPORATION, a Delaware corporation,
Defendants - Appellees.
No. 11-56898
D.C. No. 2:09-cv-02979-GW-
VBK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted December 2, 2013**
Pasadena, California
Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
FILED
DEC 12 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Plaintiff-Appellant Sandra Harmon appeals the dismissal of her state law
claims and the grant of summary judgment in favor of Defendants-Appellees. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. Because the parties are
familiar with the facts, we do not recite them here.
The dismissal of Harmon’s state law claims was appropriate. Harmon
signed a release and waiver upon her termination in which she agreed to waive all
claims against Defendants in exchange for a larger severance package. The release
did not comply with the Older Workers Benefit Protection Act (“OWBPA”), 29
U.S.C. § 626(f). But, the failure to comply with the OWBPA did not invalidate the
release as to Harmon’s state law claims because the OWBPA applies only to
federal claims under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq. See Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427-28
(1998) (stating that the OWBPA applies only to ADEA claims). Because the
OWBPA applies only to federal ADEA claims, noncompliance with the OWBPA
has no effect on Harmon’s state law claims. Thus, the district court properly
dismissed Harmon’s state law claims.
Likewise, the district court properly granted summary judgment on
Harmon’s federal ADEA claim. Even if Harmon met the minimal prima facie
burden, Defendants provided legitimate, nondiscriminatory reasons for terminating
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her as part of a reduction in workforce to reduce costs and because her position
could be eliminated with little impact on Defendant Neutrogena’s operations. See
Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1211-12 (9th Cir. 2008).
Harmon, in turn, failed “to raise a genuine issue of fact concerning whether the
facially legitimate reasons proffered by [Defendants] are pretextual.” Id. at 1212.
Because Harmon failed to meet her burden to raise a genuine issue of fact as to
pretext, summary judgment in favor of Defendants was appropriate.
AFFIRMED.
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