Johnny Davis Iv v. Con-Way Freight, Inc.; Con- Way, Inc.; Con-Way Western Express

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY DAVIS IV,
Plaintiff-Appellant,
v.
CON-WAY FREIGHT, INC.; CON-
WAY, INC.; CON-WAY WESTERN
EXPRESS,
Defendants-Appellees.
No. 15-35864
D.C. No. 3:14-cv-01389-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted March 9, 2018
Portland, Oregon
Before: N.R. SMITH, CHRISTEN, and HURWITZ, Circuit Judges.
Plaintiff-Appellant Johnny Davis appeals a district court order granting
summary judgment for Defendant-Appellee Con-Way Freight, Inc. and its
associated entities. We have jurisdiction under 28 U.S.C. § 1291, and we review
FILED
MAR 23 2018
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.

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de novo. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018).
We affirm.
1. The district court properly entered summary judgment on Davis’s
disability discrimination claim. “We apply the familiar burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), to
claims under Oregon disability law.” Mayo v. PCC Structurals, Inc., 795 F.3d 941,
943 (9th Cir. 2015). We conclude that Davis did not make out a prima facie case
of disability discrimination. To establish a prima facie case, Davis needed to
introduce evidence that he “suffered an adverse employment action because of his
disability.” Id. at 944. We agree with the district court that Davis fell short of that
mark.
Even viewing the evidence in the light most favorable to Davis, there are no
facts showing, or permitting a reasonable inference, that the decisionmakers behind
Davis’s firing were aware he was disabled. Although Davis suggests Kathryn
Withrow had to approve his medical leave requests in 2012, he points to no
evidence—as opposed to unsworn argument—that he made any such request.
Similarly, there is no evidence that Withrow was aware Davis’s “emotional
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breakdown” was due to cancer-related stress.1 Finally, Davis’s reliance on a
reference to oncology in a document Withrow included in a packet for Davis’s
Employee Termination Review Board hearing is misplaced. Even assuming
Withrow saw the document and understood it to mean Davis had cancer, he did not
raise a material issue about whether she obtained the document until after Davis
had been suspended and fired. Absent evidence that the decisionmakers knew he
was disabled, Davis did not show that he suffered adverse employment actions
because of his disability.
2. The district court also properly entered summary judgment on Davis’s
wrongful discharge claim. As pleaded, Davis’s wrongful discharge claim advances
the theory that Con-Way fired him because it did not want to bear the expense of
his healthcare. Such a claim is preempted by § 514(a) of the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1144(a). See Campbell v. Aerospace
Corp., 123 F.3d 1308, 1313 (9th Cir. 1997) (“[W]e have held that where the
plaintiff’s claim or theory alleged that the employer terminated the employee to
avoid paying benefits or sought to prevent the discharged employee from obtaining
benefits, ERISA preempted the claim.”).
1 The uncertain provenance of the Marc Kamm letter does not suggest
that Withrow or Kevin Huner knew of Davis’s cancer.
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Davis now advances something akin to a retaliation theory, claiming he was
fired for “rais[ing] complaints about how he had to pay thousands of dollars out of
pocket for his cancer medications, how he was financially struggling because of
the high costs of his treatments, and how he was under tons of stress because of his
health and cost of cancer treatments.” A wrongful discharge claim in Oregon
requires a “causal connection” between a protected activity and an allegedly
wrongful discharge. Sheppard v. David Evans and Assocs., 694 F.3d 1045, 1051
(9th Cir. 2012) (internal quotation marks omitted). Here, Davis asserts protected
activities that are inextricably linked with his cancer, but, as discussed, there is no
evidence that the decisionmakers behind his firing were aware of his cancer.
Consequently, to the extent Davis disavows his benefits-avoidance theory, his
retaliation theory lacks factual support.
AFFIRMED.
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