Dennis L. TURNEY, a married man, Plaintiff-Appellant, v. HYUNDAI CONSTRUCTION EQUIPMENT USA INCORPORATED; Hyundai Heavy Industries Limited; John Lim, an individual, Defendants-Appellees, 482 F. App'x 259

MEMORANDUM Plaintiff-Appellant Dennis L. Turney (“Turney”) appeals the district court’s grant of

summary judgment in favor of Defendants-Appellees on his claims of national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. We affirm. Turney alleges he was terminated from his position at Hyundai Construction Equipment USA, Inc. (“HCE”) because of his age and because he is a non-Korean Caucasian American.

HCE claims it terminated Turney for performance-related problems, a “legitimate, nondiscriminatory reason” for the adverse employment action. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916-17 (9th Cir.1996). Even though he is Caucasian, Turney belongs to a protected class for purposes of his national origin discrimination claim because “Title VII applies to any racial group, whether minority or majority.” Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th Cir.2002).

Nevertheless, Turney’s national origin discrimination claim fails because Tur-ney has not produced sufficient evidence to state a prima facie case. Turney was replaced in his position at HCE by a man who, like him, was Caucasian American. Turney has identified no admissible evidence of national origin discrimination in his appellate briefs. The district court correctly granted

summary judgment in favor of Defendants-Appellees on Turney’s Title VII claim. Though Turney’s evidence of age discrimination is stronger than his evidence of national origin discrimination, it is still insufficiently probative to “raise a triable issue that [HCE’s] proffered reason [for terminating Turney] is pretext for unlawful discrimination.” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir.2011). Turney has not shown he was replaced by a “substantially younger” employee. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).

Furthermore, the comments allegedly made by defendant John Lim are more properly characterized as stray remarks than direct evidence of discrimination. See Nidds, 113 F.3d at 918-19 (“old timers” comment insufficient to “create an inference of age discrimination”); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (ambivalent comment not tied directly to termination is “at best weak circumstantial evidence of discriminatory animus”); Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438-39 (9th Cir.1990). The district court did not err in granting

summary judgment in favor of Defendants-Appellees on Turney’s ADEA claim. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.