Barry KOHL, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee, 225 F. App'x 582

MEMORANDUM 1. Kohl has not produced direct evidence that the Postal Service fired him because of his religion. A stray remark by a non-decision maker is not sufficient to create a material issue of fact in this regard. See Vasquez v. County of Los Ange-les, 349 F.3d 634, 640 (9th Cir.2004). Likewise, Kohl did not establish a claim based on indirect evidence under the McDonnell-Douglas burden-shifting test because he failed to demonstrate that the legitimate reasons offered by the Postal Service for his termination were pretextual. See Bodett v. CoxCom, Inc., 366 F.3d 736, 745 (9th Cir.2004). 2.

Even if Kohl made a prima facie case of retaliation, he has not demonstrated that the Postal Service’s reasons for obtaining a fitness for duty evaluation and subsequently terminating him were pre-textual, given Kohl’s angry and threatening behavior to other employees, the two psychiatric evaluations concluding that such behavior precluded Kohl’s continued employment as a mail clerk, and a third psychiatric evaluation that contained the same general diagnosis as the other two, but stopped short of saying that he could not continue to work at his job. See Vil-liarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1062-63 (9th Cir.2002). The persons accused of retaliatory motives were not the decisionmakers, and Kohl has not offered any evidence that DeWitt was motivated by discriminatory intent. See Vasquez, 349 F.3d at 642. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.