William Clark v. Mirage Casino-Hotel, Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-16369
WILLIAM CLARK,
D.C. No.
Plaintiff-Appellant,
2:18-cv-00392-APG-BNW
v.
MEMORANDUM*
MIRAGE CASINO-HOTEL, INC.,
Defendant-Appellee.
Appeal from the United States District Court for Nevada, Las Vegas
Andrew P. Gordon, District Judge, Presiding
Submitted June 11, 2020**
San Francisco, California
Before: MILLER and HUNSAKER, Circuit Judges, and RAYES,*** District
Judge.
Plaintiff-Appellant William Clark accuses Defendant-Appellee Mirage
Casino-Hotel, Inc. (“Mirage”) of terminating his employment because of his age in
*
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 Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
violation of the Age Discrimination in Employment Act (ADEA) and its Nevada
state law counterpart.1 At summary judgment, the district court assumed that Clark
had established a prima facie case of age discrimination but concluded that Clark
had failed to show Mirage’s non-discriminatory reason for the termination was
pretextual. Clark appeals that determination. The parties are familiar with the
facts, so we do not recount them here. We have jurisdiction under 28 U.S.C. §
1291, and we review the district court’s grant of summary judgment de novo.
Vasquez v. Cty. of L.A., 349 F.3d 634, 639 (9th Cir. 2003). We affirm.
ADEA claims are governed by the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Under this framework,
the employee must first establish a prima facie case of age discrimination.” Diaz
v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (emphasis
added). The burden then “shifts to the employer to articulate a legitimate, non-
discriminatory reason for its adverse employment action.” Id. “If the employer
does so, the plaintiff must show that the articulated reason is pretextual ‘either
directly by persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer’s proffered explanation is
1
Clark also accused Mirage of subjecting him to a hostile work environment
because of his age. On this claim, the district court found no genuine issue of
material fact and concluded that Mirage was entitled to judgment as a matter of
law. Clark does not challenge this determination on appeal.
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unworthy of credence.’” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d
1115, 1124 (9th Cir. 2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)). An employee’s evidence on this point “must be both
specific and substantial to overcome the legitimate reasons put forth by” the
employer. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th
Cir. 2002). This same framework applies to Nevada’s corresponding state law.
See Nev. Rev. Stat. § 613.330; Liston v. Las Vegas Metro. Police Dep’t, 908 P.2d
720, 721 n.2 (Nev. 1995).
Assuming, as the district court did, that Clark can establish a prima facie
case of age discrimination, the district court properly granted summary judgment
because Mirage proffered a legitimate, non-discriminatory reason for terminating
Clark, which Clark failed to rebut with specific and substantial evidence.
Specifically, Mirage contends that it terminated Clark because he violated a
Workplace Violence Policy by threatening another employee. Clark presents no
direct evidence of pretext. He instead argues that Mirage’s proffered reason is not
worthy of credence because there are inconsistencies between the various witness
accounts of the incident, and because Mirage’s Workplace Violence Policy allows
for less drastic sanctions than termination, especially when considering Clark’s
overall positive work record and lack of disciplinary history. The minor semantic
differences between the witness accounts are immaterial, however, as all witnesses
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reported that Clark made a violent threat, and even Clark admitted that his
comments probably were inappropriate. And although the Workplace Violence
Policy permits less drastic sanctions, there is no evidence that any Mirage
employee engaged in similar conduct yet retained his or her employment. Clark
therefore has not shown that Mirage’s reason for his termination is unworthy of
credence.
At bottom, Clark questions whether Mirage made the right call. But we do
not second-guess Mirage’s business judgment. The question is not whether Mirage
made the right or wrong decision; it is whether Mirage terminated Clark for an
unlawful reason—his age. On this question, there is no genuine issue of material
fact and the district court properly granted summary judgment for Mirage. See
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000).
AFFIRMED.
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