Michael Kieffer v. Tsc ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL KIEFFER, No. 19-15893
Plaintiff-Appellant, D.C. No. 4:17-cv-00108-FRZ
v.
MEMORANDUM*
TRACTOR SUPPLY COMPANY, a
Delaware Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted June 2, 2020**
Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
Michael Kieffer appeals the district court’s grant of summary judgment to
his former employer, Tractor Supply Company (“TSC”), on his sex discrimination
claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-
*
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).
17. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Kieffer sued TSC alleging that he was terminated because his manager
wanted to replace him with a woman. The district court correctly granted TSC
summary judgment because Kieffer failed to establish that he was subjected to
disparate treatment on account of his sex.
“We review the district court’s grant of summary judgment de novo.”
Ridgeway v. Walmart, Inc., 946 F.3d 1066, 1077 (9th Cir. 2020) (citing Vasquez v.
Cty. of L.A., 349 F.3d 634, 639, as amended (Jan. 2, 2004)). We must “determine
whether, viewing the evidence in the light most favorable to the nonmoving party,
there are any genuine issues of material fact and whether the district court correctly
applied the relevant substantive law.” Mitchell v. Washington, 818 F.3d 436, 442–
43 (9th Cir. 2016) (quoting Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(en banc)).
To prevail in his Title VII case, Kieffer must first “establish a prima facie
case of discrimination,” Vasquez, 349 F.3d at 640, by introducing sufficient
“evidence that ‘give[s] rise to an inference of unlawful discrimination,’” Reynaga
v. Roseburg Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017) (quoting Sischo–
Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991),
superseded on other grounds as recognized by Dominguez-Curry v. Nev. Transp.
Dep’t, 424 F.3d 1027, 1041 (9th Cir. 2005)). He can give rise to such an inference
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either “through direct or circumstantial evidence of discriminatory intent,”
Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1150 (9th Cir. 1997) (quoting
Sischo-Nownejad, 934 F.2d at 1111), or through the framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). He fails to do
so on either front.
1. Kieffer first points to a declaration by his co-worker, Victorya Smith, as
“direct evidence” of discrimination. In her declaration, Smith claims overhearing
Kieffer’s former supervisor, Rob Hardy, confessing to another employee that he
planned to replace Kieffer in his Store Manager role with Assistant Store Manager
Susan Tefft because “Susan, being a woman, will do a lot of good for this
store.” Kieffer argues that this statement “can only mean” that gender motivated
Kieffer’s termination. But even if this purported conversation occurred as Smith
recounts, it is not direct evidence of discrimination because it requires us to infer a
discriminatory motive. See Vasquez, 349 F.3d at 640 (“Direct evidence is
‘evidence which, if believed, proves the fact [of discriminatory animus] without
inference or presumption.’” (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
1221 (9th Cir. 1998))). In other words, that Hardy believed Tefft would do a lot of
good to the store because she is a woman says nothing about whether he fired
Kieffer because he is a man, unless we draw several inferences in Kieffer’s
favor.
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2. Kieffer also alleges that Hardy schemed to replace him with Tefft
because Hardy had a “romantic” and “friendly and physical relationship” with
her. In other words, Kieffer argues that “Hardy favored his paramour, Susan
Tefft.” But Kieffer does not offer “direct evidence” that Tefft was Hardy’s
“paramour.” The only evidence of a purported sexual or romantic relationship
between Hardy and Tefft is, again, Kieffer’s and Smith’s self-serving
declarations. See generally Nigro v. Sears Roebuck & Co., 784 F.3d 495, 497 (9th
Cir. 2015) (holding that “a self-serving declaration does not always create a
genuine issue of material fact for summary judgment: The district court can
disregard a self-serving declaration that states only conclusions and not facts that
would be admissible evidence”). Even if we take these declarations as true, as we
must, at best they constitute circumstantial evidence that Tefft had a romantic
interest in Hardy. They do not show that Tefft and Hardy had a romantic or sexual
relationship that motivated Hardy to fire Kieffer to promote Tefft. Again, to find
that these declarations constitute “direct evidence” of discrimination would require
us to draw several inferences in Kieffer’s favor. Vasquez, 349 F.3d at 640.
3. Having failed to adduce direct evidence to make out a prima facie case of
discrimination, Kieffer must proceed under the McDonnell Douglas
framework. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.
2002) (“[T]o show disparate treatment under Title VII [a plaintiff] . . . must show
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that (1) []he belongs to a protected class; (2) []he was qualified for the position; (3)
[]he was subjected to an adverse employment action; and (4) similarly situated
[wo]men were treated more favorably, or [his] position was filled by a [wo]man.”
(citing McDonnell Douglas, 411 U.S. at 802)).
Here, Kieffer fails to raise a triable issue of material fact as to the second
and fourth factors of the McDonnell Douglas framework because the record
unequivocally establishes that Kieffer failed to perform his duties satisfactorily.
He consistently received negative ratings and failed to demonstrate any
improvement, violated company policy by instructing his staff to bring issues
directly to him rather than reporting them to Human Resources, and borrowed
company property for personal use without permission. Similarly, Kieffer offers
no evidence that female store managers with the same or similar poor ratings, who
violated company policy and borrowed company property without permission,
were not terminated. See Vasquez, 349 F.3d at 641 (“[I]ndividuals are similarly
situated when they have similar jobs and display similar conduct.”); Wall v. Nat’l
R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir. 1983) (affirming district court
where plaintiff did not show that he was treated less favorably than similarly
situated employees because other employees had no disciplinary record and were
thus not similarly situated). Accordingly, Kieffer also fails to make a prima facie
case of sex-based discrimination under the McDonnell Douglas test.
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AFFIRMED.
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