Robert Norton v. Phc-Elko, Inc. , 673 F. App'x 714 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT R. NORTON, No. 14-17021
Plaintiff-Appellant, D.C. No.
3:13-cv-00169-RCJ-WGC
v.
PHC-ELKO, INC., agent of Northeastern MEMORANDUM*
Nevada Regional Hospital,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted November 18, 2016**
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Robert Norton appeals the district court’s order granting summary judgment
in favor of PHC-ELKO, Inc., on Norton’s Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12112, 12203, Age Discrimination in Employment Act (ADEA), 29
*
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).
U.S.C. § 626 et seq., breach of contract, and breach of the implied covenant of
good faith and fair dealing claims.
We affirm the district court’s grant of summary judgment. Norton did not
establish a genuine issue of material fact that his former employer’s proffered
reason for firing him—that he improperly shaved time off of his employees’ time
records—was pretext. Norton also did not establish any genuine issue as to his
status as an at-will employee.
The parties agree that the burden shifting framework announced in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to both Norton’s
ADA and ADEA claims. Under the McDonnell Douglas framework, once the
plaintiff establishes a prima facie case of discrimination, the burden shifts “to the
employer to articulate some legitimate, nondiscriminatory reason” for the adverse
employment action. 411 U.S. at 802. If the employer articulates a legitimate,
nondiscriminatory reason for the action, the burden shifts back to the plaintiff to
establish that the stated reason for the adverse action “was in fact pretext.” Id. at
804.
Norton’s ADA retaliation and discrimination claims fail because he cannot
show that the Hospital’s proffered reason for firing him was pretext. As evidence
of pretext Norton cites the following: three statements made by Gene Miller, the
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Hospital’s Chief Executive Officer, that did not explicitly reference Norton’s age
or disability; purported comparator evidence; the fact that he was never confronted
with specific time card edits or the results of the investigation; Norton’s assertion
that two Hospital employees overstated their case when they declared under oath
that “Norton admitted that he had been shaving his employees’ time and that he
had done so without their knowledge or permission,” that he believed he was
following company policy and the issue of Norton’s time card editing had been
successfully addressed with the Hospital’s Human Resources Director; and that
other directors were counseled not to do time card edits anymore.
Norton’s evidence does not create a genuine issue of material fact that the
Hospital’s proffered reason for firing him was pretext. Norton cited two
statements from Miller without providing the context or the content of the
conversations that prompted them. The final statement—that Miller told Norton
the Hospital did not want people like Norton around—was said in the context of
Miller being fired for what the Hospital believed to be unlawful time shaving.
Norton’s comparator evidence is also not persuasive. The one employee
Norton identified by name who engaged in the same time editing as Norton was his
subordinate. She was not similarly situated to Norton and not a valid comparator.
See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“Employees
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in supervisory positions are generally deemed not to be similarly situated to lower
level employees.”). The “other directors” who engaged in time card editing did so
in ways that were substantially different from Norton, both in frequency and reason
for editing. The Hospital appropriately found that their editing did not constitute
misconduct. These employees were neither similarly situated nor valid
comparators. See Vasquez, 349 F.3d at 641 (holding employees were not similarly
situated when they “did not engage in problematic conduct of comparable
seriousness”). Even assuming that the behavior of the other directors was
misconduct, we “distinguish[] misconduct by one employee from misconduct by
another employee on the basis of whether it prompted complaints or consternation
by other employees.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1160 (9th
Cir. 2010). Complaints were lodged against only Norton. Norton’s other evidence
is primarily comprised of conclusory and self-serving allegations that are
insufficient to survive summary judgment. See F.T.C. v. Publ’g Clearing House,
Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). Norton’s personal belief as to the
propriety of his actions does not create a genuine issue of material fact. See
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028–29 n.6 (9th Cir.
2006). Finally, that after his termination other directors were counseled not to edit
time records, and that the Hospital paid Dietary Department employees for the
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shaved time, support the Hospital’s proffered reason for firing Norton. Norton did
not create a genuine issue of material fact as to pretext.
The district court also properly granted summary judgment on Norton’s
ADEA discrimination claim because Norton similarly did not create a genuine
issue as to pretext. Norton relied primarily on the same evidence to establish
pretext for his ADEA claims as he did for the ADA claim. For the reasons stated
above, that evidence does not defeat summary judgment. He also asserts that
“[o]thers in Norton’s age bracket were treated poorly.” However, Norton does not
provide the ages of these “others,” nor does he give specific evidence of how they
were “treated poorly.” These uncorroborated, self-serving, conclusory statements
do not create a genuine issue of material fact as to pretext. See Nigro v. Sears,
Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). The district court therefore
properly granted summary judgment to PHC-ELKO, Inc.
Finally, Norton argues that the Hospital breached his employment contract
and violated the implied covenant of good faith and fair dealing. Norton argues
that his original offer letter, the Employee Handbook, and the Hospital’s use of the
Handbook in his discharge decision, create a genuine dispute of material fact as to
whether he had an employment contract with the Hospital. Norton’s argument
fails. First, the disclaimer in his offer letter, “[n]either this letter or any other
5
document, nor any of our previous or later conversations, are intended to be an
employment contract expressed or implied,” refers to documents and discussions
that may occur in the future, after he has accepted employment. The Supreme
Court of Nevada has held that similar language represents at-will language. See
Martin v. Sears, Roebuck & Co., 899 P.2d 551, 554–55 (Nev. 1995). Second, the
policies and clauses outlined in the Employee Handbook do not include promissory
language that created an implied employment contract. See, e.g., D’Angelo v.
Gardner, 819 P.2d 206, 210–11 (Nev. 1991). Finally, the Handbook contains a
disclaimer reinforcing that employees are at-will and the Handbook does not create
an implied employment contract. Because there is a disclaimer and no
contradicting promissory language, the Handbook does not create an implied
contract or otherwise alter Norton’s at-will employment status. See Sw. Gas Corp.
v. Vargas, 901 P.2d 693, 698 (Nev. 1995).
AFFIRMED.
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