Mustafa Ozgur v. Dtna ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       OCT 13 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MUSTAFA OZGUR,                                  No.    20-35920
    Plaintiff-Appellant,            D.C. No. 3:19-cv-00432-JR
    v.
    MEMORANDUM*
    DAIMLER TRUCKS NORTH AMERICA
    LLC,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Oregon
    Karin J. Immergut, District Judge, Presiding
    Submitted October 7, 2021**
    Portland, Oregon
    Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
    Mustafa Ozgur appeals the district court’s order granting summary judgment
    for Daimler Trucks North America, LLC (“DTNA”) on Ozgur’s age discrimination
    claim under the Age Discrimination in Employment Act (ADEA). He also raises
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    several discovery-related issues. We have jurisdiction under 
    28 U.S.C. § 1291
    , and
    we affirm.
    1.     The district court did not err in finding that certain emails were
    protected by the attorney-client privilege. We review the district court’s rulings on
    the scope of the privilege de novo and the district court’s factual findings for clear
    error. United States v. Richey, 
    632 F.3d 559
    , 563 (9th Cir. 2011). The attorney-
    client privilege extends “to communications by any corporate employee regardless
    of position when the communications concern matters within the scope of the
    employee’s corporate duties and the employee is aware that the information is being
    furnished to enable the attorney to provide legal advice to the corporation.” Admiral
    Ins. Co. v. U.S. Dist. Ct. for Dist. Ariz., 
    881 F.2d 1486
    , 1492 (9th Cir. 1989) (citing
    Upjohn Co. v. United States, 
    449 U.S. 383
    , 394 (1981)). Based on our in camera
    review of the disputed emails, the district court did not err in concluding that the
    emails either contained legal advice or were made for the purpose of obtaining legal
    advice. Moreover, any error in holding that an email was privileged even though it
    was not a communication between DTNA and an attorney (because it predated
    DTNA’s outside counsel’s direct involvement), was harmless, because the failure to
    disclose that email did not prejudice Ozgur. Ozgur’s request for disclosure of these
    emails is therefore without merit.
    2.     Even assuming the issue was properly preserved below, the magistrate
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    judge did not abuse her discretion in denying Ozgur’s motion to compel further
    responses to Request for Production No. 11. Hallett v. Morgan, 
    296 F.3d 732
    , 751
    (9th Cir. 2002) (standard of review). Request No. 11 was substantially overbroad.
    And although Ozgur now claims that he needed a further response to this request to
    obtain information about HN’s age, Ozgur had other opportunities to secure this
    information in discovery. Regardless, there is no prejudice to Ozgur because, as
    explained below, even if HN was younger than Ozgur, Ozgur has still failed to
    establish a prima facie case of age discrimination under the ADEA.
    3.     We review the district court’s grant of summary judgment de novo,
    viewing the facts in the light most favorable to the non-moving party. Earl v. Nielsen
    Media Rsch., Inc., 
    658 F.3d 1108
    , 1112 (9th Cir. 2011). To make out a prima facie
    case of age discrimination under the ADEA, Ozgur was required to show that “he
    was within the protected class of individuals between forty and seventy years of age,
    that he applied for a position for which he was qualified, and that a younger person
    with similar qualifications received the position.” Cotton v. City of Alameda, 
    812 F.2d 1245
    , 1248 (9th Cir. 1987).
    Even assuming that HN is substantially younger than Ozgur, Ozgur failed to
    raise a genuine issue of material fact as to whether HN was similarly qualified.
    Instead, the undisputed facts show that HN had superior qualifications for the
    position of Supervisor – Manufacturing Engineer, the position to which Ozgur and
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    HN applied.     HN had past managerial experience and had already worked
    successfully in the position for over two years when the position was advertised,
    whereas Ozgur never formally held a position as a manager or supervisor at DTNA,
    and his managerial experience was indirect and dated.
    While Ozgur argues that he had more total years of experience than HN, HN’s
    own experience was substantial. Regardless, the “question is whether the other
    candidates are more qualified with respect to the criteria that [the employer] actually
    employs.” 
    Id. at 1249
    . In this case, DTNA’s central consideration for the position
    was “demonstrated ability to perform manufacturing engineering project
    management,” not total years of experience. Thus, Ozgur’s “subjective personal
    judgments of h[is] competence alone do not raise a genuine issue of material fact.”
    Bradley v. Harcourt, Brace & Co., 
    104 F.3d 267
    , 270 (9th Cir. 1996). Nor is there
    a dispute of material fact arising from DTNA’s decision not to interview HN because
    DTNA was already familiar with HN’s performance in the position in question.
    AFFIRMED.
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