FILED NOT FOR PUBLICATION DEC 17 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMMY BODEN, AKA Shane Boden, No. 21-35100

Plaintiff-Appellant, D.C. No. 4:18-cv-00266-JMM

v. MEMORANDUM* NUTRIEN AG SOLUTIONS, INC., FKA Crop Production Services, Inc.,

Defendant-Appellee.

Appeal from the United States District Court for the District of Idaho James Maxwell Moody, District Judge, Presiding

Argued and Submitted November 17, 2021 Pasadena, California

Before: RAWLINSON and LEE, Circuit Judges, and KENNELLY,** District Judge.

Tommy Boden (Boden) appeals the district court’s grant of summary

judgment in favor of Nutrien AG Solutions, Inc. (Nutrien). Boden alleged that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. Nutrien terminated him from his position as an agricultural sales representative due

to his disability and age in violation of the Americans with Disabilities Act (ADA)

and the Age Discrimination in Employment Act (ADEA). Boden contends that the

district court erred in granting summary judgment on his ADA claim because he

raised a material factual dispute that he was disabled and was terminated on

account of his disability. Boden further asserts that the district court erred in

granting summary judgment in favor of Nutrien on his ADEA claim because he

presented direct evidence of discriminatory animus.

The district court properly granted summary judgment on Boden’s ADA

claim because Boden failed to raise a material factual dispute that he was disabled

or that Nutrien was aware of any disability when he was terminated. Boden’s

medical records indicated that Boden was cleared to work without restrictions, and

Boden acknowledged in his deposition that he was capable of working without

restrictions. See Garcia v. Salvation Army, 918 F.3d 997, 1010 (9th Cir. 2019)

(explaining that “[a] doctor’s release to work without restrictions supports a

finding that a person no longer suffers from a disability”) (citations and internal

quotation marks omitted). Additionally, Boden failed to raise a material factual

dispute that Nutrien was aware of Boden’s purported disability, or based Boden’s

termination on a perceived disability. See Lopez v. Pac. Maritime Ass’n, 657 F.3d

2 762, 765 (9th Cir. 2011), as amended (recognizing that “[i]f the employer were

truly unaware that a disability existed, it would be impossible for [its employment]

decision to have been based, even in part, on the employee’s disability”) (citation

and alterations omitted).

However, the district court erred in granting summary judgment in favor of

Nutrien on Boden’s ADEA claim. We have held that “[d]irect evidence, in the

context of an ADEA claim, is defined as evidence of conduct or statements by

persons involved in the decision-making process that may be viewed as directly

reflecting the alleged discriminatory attitude sufficient to permit the fact finder to

infer that that attitude was more likely than not a motivating factor in the

employer’s decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004), as amended (citation, alteration, and internal quotation marks

omitted) (emphasis in the original).

Boden presented direct evidence of discriminatory animus based on the

depositions of two former customers. One customer related that, when he spoke to

the manager who terminated Boden,1 the manager conveyed that Nutrien had “a

1 The Nutrien manager who conversed with the customers made the decision to terminate Boden. Due to direct evidence of discriminatory animus, we are unpersuaded by Nutrien’s assertions that summary judgment was warranted on Boden’s ADEA claim based on the same-actor inference. See Coghlan v. Am. (continued...) 3 new guy, he’s younger, he’s educated. And . . . they need[ed] someone new and

someone educated. And [Boden was] too old.” Another customer recounted that,

when he spoke to the manager about Boden’s termination, he responded that

Nutrien had found “somebody younger and eager.”

In light of this direct evidence of discriminatory animus, the district court

also erred in applying the burden-shifting framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Enlow, 389 F.3d at 812

(explaining that “[w]hen a plaintiff alleges disparate treatment based on direct

evidence in an ADEA claim, we do not apply the burden-shifting analysis set forth

in McDonnell Douglas”). Rather, we determine whether the plaintiff raised a

material factual dispute that his age was “a motivating factor” in his termination in

light of the direct evidence of discriminatory animus. Id. The direct evidence of

discriminatory animus toward Boden met this standard.2

1 (...continued) Seafoods Co. LLC., 413 F.3d 1090, 1096 & n.10 (9th Cir. 2005) (recognizing in a case lacking “any direct evidence of . . . discriminatory intent” that “when the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail”) (emphasis added).

2 Because Boden raised a material factual dispute precluding summary judgment based on direct evidence, we need not and do not address Boden’s appeal (continued...) 4 AFFIRMED in part and REVERSED in part.

2 (...continued) of the district court’s grant of Nutrien’s motion to strike portions of the declarations submitted by Boden and Isaac Walker. 5