Mirko Carrea v. Dreyer's Grand Ice Cream, Inc.
475 F. App'x 113
9th Cir.
2012
Check Treatment
Docket

Mirko CARREA, on behalf of himself and those similarly situated v. DREYER‘S GRAND ICE CREAM, INC.

No. 11-15263

United States Court of Appeals, Ninth Circuit

April 5, 2012

475 Fed. Appx. 113

Argued and Submitted Jan. 18, 2012.

lead painter. See . While there is some evidence that an employee in Final Counseling forfeits his seniority for a temporary period, this does not change the result. Even assuming the Final Counseling was an adverse action, Woods fails to raise any genuine issues of material fact regarding pretext. He has adduced no direct or circumstantial evidence of discriminatory intent on the part of Defendants. See . Notably, Woods has failed to show that Defendants disparately treated him in comparison to similarly situated employees outside Woods’ protected class.

5. The district court also properly dismissed Woods’ retaliation claims. As a preliminary matter, Woods’ sexual harassment complaint against his subordinate, Schlieman, did not constitute protected activity because it was unreasonable for Woods to believe that Schlieman‘s comments constituted an unlawful employment practice under Title VII. See . Next, assuming Woods’ 2006 lawsuit against the University was a protected activity, he did not suffer an adverse action as a result. Woods contends that his supervisor, Frankenhauser, retaliated by refusing to remedy repeated acts of insubordination displayed by Schlieman. We cannot say that this “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted). Even assuming that Frankenhauser‘s failure to respond was an adverse action, Woods has failed to develop a triable issue regarding causation. Eight months had elapsed between the time Woods filed his prior lawsuit in January 2006, and the first instance of alleged retaliation in August 2006. This eight-month interval does not permit an inference of causation. See .

6. Because Woods failed to raise a genuine issue of material fact regarding the foregoing elements of his discrimination and retaliation claims, the district court properly granted summary judgment for Defendants.

AFFIRMED.

Michael Reese, Kim Eleazer Richman, Esquire, Reese Richman LLP, New York, NY, for Plaintiff-Appellant.

Carmine R. Zarlenga, Mayer Brown LLP, Washington, DC, Dale Joseph Giali, Andrea M. Weiss, Esquire, Mayer Brown LLP, Los Angeles, CA, for Defendant-Appellee.

Before: KOZINSKI, Chief Judge, WARDLAW and PAEZ, Circuit Judges.

MEMORANDUM*

Mirko Carrea (“Carrea“) appeals the district court‘s dismissal of his Second Amended Class Action Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The complaint alleges that Dreyer‘s Grand Ice Cream, Inc. (“Dreyer‘s“) violated four state consumer protection laws: (1) Unfair Competition Law, Cal. Bus. and Prof.Code § 17200 et seq.; (2) False Advertising Law, Cal. Bus. and Prof. Code § 17500 et seq.; (3) California Consumers Legal Remedies Act, Cal. Civ.Code § 1750, et seq.; and (4) New York General Business Law § 349. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Rule 12(b)(6), and we affirm.

Carrea‘s claims regarding the “0g Trans Fat” statement, located on the front of Drumstick‘s packaging, are expressly preempted by the Federal Food, Drug and Cosmetic Act (“FDCA“), as amended by the Nutrition Labeling and Education Act (“NLEA“). 21 U.S.C. § 343-1(a)(5). The statement is an express nutrient content claim that the Federal Food and Drug Administration (“FDA“) not only permits, 21 C.F.R. § 101.13(i)(3), but further instructs should mirror the Nutrition Facts panel, see 58 Fed.Reg. 44020, 44024-25 (Aug. 18, 1993) (stating that any discrepancy between a nutrient content claim and the Nutrition Facts panel would be “confusing to consumers, and this consequence is unintended“). Here, because Drumstick contains less than 0.5 grams of trans fat per serving, the Nutrition Facts panel must express this amount as zero. 21 C.F.R. § 101.9(c)(2)(ii). Accordingly, the same rule applies to the statement on the front of Drumstick‘s packaging. In essence, Carrea seeks to enjoin and declare unlawful the very statement that federal law permits and defines. Such relief would impose a burden through state law that is not identical to the requirements under section 343(r). These claims are therefore expressly preempted. See .

Carrea‘s claims regarding the other statements on the front of Drumstick‘s packaging fare no better. It is implausible that a reasonable consumer would interpret “Original Sundae Cone,” “Original Vanilla,” and “Classic,” to imply that Drumstick is more wholesome or nutritious than competing products. Notably, none of these phrases modify “recipe,” “ingredients,” “1928,” or any other term that might suggest that the modern Drumstick is identical in composition to its prototype. Even were it so, the presence of “original” or “classic” ingredients alone does not plausibly imply that a product is more nutritious than other desserts. In addition, no reasonable consumer is likely to think that “Original Vanilla” refers to a natural ingredient when that term is adjacent to the phrase, “Artificially Flavored.” Finally, it strains credulity to claim that a reasonable consumer would be misled to think that an ice cream dessert, with “chocolate coating topped with nuts,” is healthier than its competitors simply by virtue of these “Original” and “Classic” descriptors. In sum, we conclude that Carrea‘s state law claims fail to satisfy the “reasonable consumer” standard in . Dismissal of these claims with prejudice was therefore proper.

The judgment of the district court is AFFIRMED.

Notes

*
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.