Melvin Richardson v. Day & Zimmerman Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN D. RICHARDSON, No. 17-17381
Plaintiff-Appellant, D.C. No. 2:16-cv-01663-DLR
v.
MEMORANDUM*
DAY & ZIMMERMAN INCORPORATED,
a Maryland Corporation doing business in
Arizona,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted April 16, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and VRATIL,***
District Judge.
Plaintiff-Appellant Melvin Richardson appeals the district court’s order
*
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).
***
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
granting summary judgment to Defendant-Appellee Day & Zimmerman, Inc. (DZ)
as to his claims for employment discrimination under Title VII of the Civil Rights
Act of 1964 and the Arizona Civil Rights Act. See 42 U.S.C. § 2000e-2(a)(1);
A.R.S. § 41-1463(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. Under the McDonnell Douglas Corp. v. Green matrix, Richardson must
make a prima facie case establishing by a preponderance of the evidence that
similarly situated employees not in his protected class were treated more favorably.
411 U.S. 792, 802 (1973). Even “construing the facts in the light most favorable to
the nonmoving party and drawing all reasonable inferences in that party’s favor,”
Richardson did not provide evidence that similarly situated employees were treated
more favorably. Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir.
2017).
Richardson pointed to two “similarly situated” white supervisors in his
deposition, Thomas Forde and Charles Whitehead, yet failed to identify any way
either was treated more favorably than him, even when asked directly. Then, in his
post-discovery affidavit, Richardson ambiguously cited “White Superintendents”
being treated more favorably because they were able to hire more staff. The
district court appropriately found this to conflict with his earlier deposition—
Richardson was specifically asked about comparators and could not provide any
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details about how Forde and Whitehead were treated more favorably. See
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (Courts “have
held with virtual unanimity that a party cannot create a genuine issue of fact
sufficient to survive summary judgment simply by contradicting his . . . own
previous sworn statement.”).
2. Even if Richardson could establish a prima facie case, he fails to establish
that DZ’s legitimate reason for terminating his employment was pretextual. “Such
evidence of ‘pretense’ must be ‘specific’ and ‘substantial.’” Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998), amended (Aug. 11, 1998).
Richardson provides no evidence to refute DZ’s legitimate concerns of repeated
safety incidents and workers’ complaints. Richardson argues that it was unwise to
blame him as the supervisor for safety errors committed by his workers, yet we
“must not substitute [our] own judgment about whether the employment decisions
were wise, or even fair, for that of the employer.” Odima v. Westin Tucson Hotel
Co., 991 F.2d 595, 602 (9th Cir. 1993).
AFFIRMED.
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