Glenn LEATHERBURY, Plaintiff-Appellant, v. C & H SUGAR COMPANY, INC., a Delaware corporation and American Sugar Refining, Inc., a Delaware corporation, Defendants-Appellees, 607 F. App'x 676

MEMORANDUM Glenn Leatherbury appeals the district court’s grant of

summary, judgment in favor of his employer, C & H Sugar Company, Inc. and its parent company American Sugar Refining, Inc., on his claims of failure to pay overtime in violation of California Labor Code § 510, and for violations of the California Fair Employment and Housing Act (“FEHA”), California Government Code § 12940 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. 1. The district court did not err in concluding that Leatherbury was exempt from California’s overtime wage requirements. See Cal. Labor Code §§ 510, 515.

First, the suggestions of supervisors (such as Leatherbury) were given “particular weight” in making decisions to hire, fire, promote, and change the status of employees. See In re United Parcel Serv. Wage & Hour Cases, 190 Cal.App.4th 1001, 118 Cal.Rptr.3d 834, 842 (2010). Second, supervisors customarily and regularly exercised their discretion and independent judgment. Leatherbury had the authority to discipline union employees and to determine when someone would work overtime. He also addressed complaints and concerns raised by union employees.

These decisions and choices were “matters of significance” that affected numerous employees with respect to C & H’s business. Id. at 851-52. Lastly, supervisors like Leath-erbury “primarily engaged in duties that meet the test of the exemption.” Id. at 842. Leatherbury defines much of his duties (such as keeping track of subordinates’ time and spot checking and examining the work of subordinates) as “clerical.” Despite Leatherbury’s classification of his duties, much of that work includes work done by exempt employees. See id. at 845-46; see also 29 C.F.R. § 541.703 (2008). 2.

Assuming that Leatherbury established his prima facie case of disability discrimination, C & H adequately rebutted the resulting presumption of discrimination by showing that it terminated Leath-erbury for legitimate, nondiscriminatory reasons. Leatherbury has not identified pretext sufficient to create a triable issue of fact material to C & H’s motivation in terminating him.

Leatherbury “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could, rationally find them unworthy of credence....” McRae v. Dep’t of Corr. & Rehab., 142 Cal.App.4th 377, 48 Cal.Rptr.3d 313, 321 (2006) (internal quotation marks omitted). Leatherbury challenged C & H’s three proffered reasons for termination — (1) performing union work, (2) interfering with union negotiations, and (3) poor performance in his new position as a packing supervisor.

However, Leather-bury’s challenges at best show that C & H’s “decision was wrong, mistaken, or unwise.” Id. A wrong, mistaken, or unwise decision is not enough to establish pretext. Id. 3. The district court did not err in concluding that Leatherbury failed to establish a claim of race discrimination and retaliation. Leatherbury did not establish a prima facie case of race discrimination or retaliation. The employee who was the source of the alleged discrimination and retaliation was terminated prior to Leath-erbury’s transfer to Packing Supervisor and thereafter his termination from C & H.

There is no causal connection between the alleged discriminatory conduct and his termination. Furthermore, even if Leath-erbury established a prima facie case, his claims would fail, because Leatherbury cannot establish that his termination was pretextual for any type of discrimination. 4. The district court did not err in concluding that C & H did not fail to accommodate Leatherbury’s disability or engage in the interactive process. At best, C & H was on notice of Leatherbury’s disability two days prior to his termination.

However, Leatherbury did not provide C & H a list of restrictions or request an accommodation. See King v. United Parcel Serv., Inc., 152 Cal.App.4th 426, 60 Cal.Rptr.3d 359, 374 (2007). In fact, the medical doctor at C & H released Leatherbury to work without any restrictions. Based on this evidence, Leather-bury failed to present an issue of material fact that C & H failed to accommodate his disability prior to his termination. 5. FEHA claims, his wrongful termination claim must also fail. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.