Gayle McCoy v. Barrick Gold of N. Am., Inc. ( 2017 )

  •                            NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                        DEC 7 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    GAYLE MCCOY,                                    No.    16-16945
                    Plaintiff-Appellant,            D.C. No.
                       Appeal from the United States District Court
                                for the District of Nevada
                        Larry R. Hicks, District Judge, Presiding
                              Submitted December 5, 2017**
                                San Francisco, California
    Before: KOZINSKI and HURWITZ, Circuit Judges, and KEELEY,*** District
          1.     McCoy argues that the district court improperly collapsed the burden-
                 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 Irene M. Keeley, United States District Judge for the
    U.S. District Court for the Northern District of West Virginia, sitting by
    shifting framework in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802
    (1973). But under any analytical framework, McCoy had the burden of providing
    some evidence that Barrick’s proffered reason for his termination—poor job
    performance—was pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 143 (2000) (“[T]he ultimate burden of persuading the trier of fact that the
    defendant intentionally discriminated against the plaintiff remains at all times with
    the plaintiff.”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 253
          The district court properly concluded that McCoy failed to “raise a genuine
    factual question as to whether the proffered reason is pretextual.” Shelley v. Geren,
    666 F.3d 599
    , 609 (9th Cir. 2012). A single favorable performance review was
    insufficient to create a triable issue on pretext in light of McCoy’s numerous
    undisputed safety violations. Replacement by a younger employee is part of a prima
    facie case of discrimination, but does not show pretext. See Coleman v. Quaker Oats
    232 F.3d 1271
    , 1281–82 (9th Cir. 2000). Asking an employee who is eligible
    for retirement and performing unsatisfactorily about retirement does not give rise to
    an inference of age discrimination. See Wallis v. J.R. Simplot Co., 
    26 F.3d 885
    , 890
    (9th Cir. 1994) (“[A] plaintiff cannot defeat summary judgment simply by making
    out a prima facie case”) (citation and quotation marks omitted).
          2.     Any claimed error from the district court’s application of the “same-
    actor inference” was harmless. The inference was immaterial because McCoy failed
    to show that his age caused his termination.
           3.      The only evidence McCoy provided to support his claim that he was
    fired for claiming worker’s compensation was that he was terminated eleven months
    after an October 2013 accident. The district court correctly concluded the temporal
    proximity of the two events was not sufficient to give rise to an inference of