Guy Grimsley v. CHARLES RIVER LABORATORIES, INC., a Delaware Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY GRIMSLEY,
Plaintiff-counter-defendant -
Appellant,
v.
CHARLES RIVER LABORATORIES,
INC., a Delaware Corporation,
Defendant-counter-claimant -
Appellee.
No. 12-15106
D.C. No. 3:08-cv-00482-LRH-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted March 10, 2014**
San Francisco, California
Before: WALLACE, McKEOWN, and GOULD, Circuit Judges.
Guy Grimsley was employed as Director of Laboratory Sciences with
Charles River Laboratories in Sparks, Nevada. He was hired in November 2009
FILED
MAR 19 2014
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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and fired less than a year later after making a series of comments, many trading in
derogatory gender stereotypes, that so offended a number of critical laboratory
scientists that two of them resigned and another four threatened to do so.
Grimsley appeals the district court’s summary judgment on his claim that he
was discharged because of his “views on the treatment of animals,” which he
alleges derive from his British heritage, and on his claims for breach of contract,
breach of the covenant of good faith and fair dealing, and tortious discharge in
violation of Nevada public policy.
Grimsley’s claim of national origin discrimination fails. Title VII of the
Civil Rights Act prohibits discrimination on the basis of “national origin,” 42
U.S.C. § 2000e-2(a)(1), and its implementing regulations prohibit discrimination
on the basis of “cultural . . . characteristics of a national origin.” 29 C.F.R.
§ 1606.1. Even were we to assume that the views Grimsley describes are “cultural .
. . characteristics” of his British heritage, Grimsley has failed to rebut Charles
River’s evidence that it had a legitimate, nondiscriminatory reason for terminating
him. See, e.g., Fragante v. City & Cnty. of Honolulu, 888 F.2d 591, 595 (9th Cir.
1989) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–54
(1981)). Grimsley has offered no evidence that Dr. Durham, who hired and fired
Grimsley, knew of Grimsley’s concerns about Charles River’s treatment of
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animals, nor has he offered any other evidence related to that issue. As such,
Grimsley has failed to produce evidence sufficient to overcome the same-actor
inference or to show that Charles River’s explanation for his termination was a
mere “pretext for discrimination.” Burdine, 450 U.S. at 253; Bradley v. Harcourt,
Brace & Co., 104 F.3d 267, 270–71 (9th Cir. 1996).
Grimsley’s claim that Charles River breached his contract by terminating
him without due cause also fails. Under Nevada law, “all employees . . . are
presumptively at-will employees.” Martin v. Sears, Roebuck & Co., 899 P.2d 551,
554 (Nev. 1995). Grimsley, whose offer letter stated that he would “be, at all times,
an employee at will,” failed to rebut this presumption. Although Grimsley asserts
that he secured written and oral modifications of his contract via exchanges with
Charles River employees, the exchanges preceded the written contract between
Charles River and Grimsley, and are inadmissible under Nevada’s parol evidence
rule. Kaldi v. Farmers Ins. Exch., 21 P.3d 16, 21–22 (Nev. 2001). In addition,
nothing in the record shows that the company agreed to these asserted
modifications.
Grimsley’s claim that Charles River breached the implied covenant of good
faith and fair dealing by terminating him without due cause is similarly misplaced
because claims for “breach of contract and bad faith discharge are not applicable to
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at-will employment,” and because they require an “enforceable contract.” Martin,
899 P.2d at 555.
Grimsley’s claim that he was tortiously discharged in violation of Nevada
public policy because he opposed the company’s treatment of animals fails,
whether it is construed as a whistleblowing claim or as a “refusal to violate public
policy” claim. To succeed on a whistleblowing claim, Grimsley must establish that
he “expose[d] h[is] employer’s illegal activit[ies] to the proper authorities,” but
Grimsley admitted that he did not do so. Bielser v. Prof’l Sys. Corp., 321 F. Supp.
2d 1165, 1168–69, 1171 (D. Nev. 2004), aff’d mem., 177 F. App’x 655 (9th Cir.
2006). To succeed on the latter claim, Grimsley must establish that he had a good
faith, reasonable belief that the conduct in question was illegal. Allum v. Valley
Bank of Nev., 970 P.2d 1062, 1068 (Nev. 1998). Here, Grimsley admitted that he
had no evidence that he believed the conduct in question “violated any federal,
state or local regulation or statute.”
Finally, the district court did not err in denying Grimsley leave to amend his
complaint to add a claim that Charles River retaliated against him by filing
compulsory counterclaims. Grimsley failed to exhaust his administrative remedies
as to the retaliation claim, Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632,
636 (9th Cir. 2002), and the retaliation claim was not reasonably related to his
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original claims. Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 644–45 (9th Cir.
2003). The district court lacked jurisdiction to hear the claim. Freeman, 291 F.3d
at 636-38.
AFFIRMED.
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