Smith v. Gardiner ( 2010 )

FILED
NOT FOR PUBLICATION JAN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DERRICK B. SMITH, Jr., No. 07-15031
Plaintiff - Appellant, D.C. No. CV-02-01390-RJJ
v.
MEMORANDUM *
ED GARDINER; PAR ELECTRICAL
CONTRACTORS, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Submitted January 15, 2010 **
San Francisco, California
Before: WALLACE, HUG and CLIFTON, Circuit Judges.
Smith appeals from the district court’s summary judgment in favor of his
former employer, Par Electrical Contractors, Inc., and its co-defendants
(collectively, Par) on Smith’s claims that he was terminated due to his race. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court had jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and
1343. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
I.
We review the district court’s summary judgment de novo. Universal
Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Smith
brought claims against Par under Title VII of the Civil Rights Act of 1964
(42 U.S.C. § 2000e et seq.) (Title VII), 42 U.S.C. § 1981 and Nevada’s
anti-discrimination law (Nev. Rev. Stat. § 613.330 et seq.), alleging that he was
terminated due to his race. We analyze Smith’s disparate treatment claims under
all three statutes using the same analytical framework. Jurado v. Eleven-Fifty
Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) (applying Title VII standards to a 42
U.S.C. § 1981 claim); Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005) (“[i]n light
of the similarity between Title VII . . . and Nevada’s anti-discrimination statutes,”
Nevada courts look to Title VII cases for guidance in analyzing state
discrimination claims); Apeceche v. White Pine County, 615 P.2d 975, 977 (Nev.
1980) (applying burden-shifting framework to claims under Nev. Rev. Stat.
§ 613.330 et seq.).
Assuming, without deciding, that Smith presented a prima facie case of
discrimination, Par had the “burden of production, but not persuasion” to
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“articulate some legitimate, nondiscriminatory reason” for Smith’s termination.
E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (quotation marks and
citation omitted). Par met this burden by presenting evidence that Smith’s
supervisor, Goulet, fired Smith because, after Goulet halted a verbal altercation
between Smith and co-worker Gardiner, Goulet heard a report that led him to
believe that Smith had threatened to shoot Gardiner. An employer’s “belief in the
truth of the charges [of misconduct]” is a “legally sufficient” legitimate,
nondiscriminatory reason for dismissal. Jones v. Los Angeles Cmty. Coll. Dist.,
702 F.2d 203, 205 (9th Cir. 1983) (quotation marks and citation omitted).
Once Par met its burden, it then was incumbent on Smith to show that Par’s
stated reason was pretextual. E.E.O.C., 577 F.3d at 1049. The district court
correctly held there was no direct evidence of discrimination. Smith alleged that
he had heard workers “from out of town” using racial slurs, and that a foreman
once commented on how dark Smith’s skin was, but such remarks are evidence
that an employment action was motivated by animus only if those people were
involved in the decision to terminate him. Dominguez-Curry v. Nev. Transp.
Dept., 424 F.3d 1027, 1039-40 (9th Cir. 2005) (“Where... the person who exhibited
discriminatory animus influenced or participated in the decisionmaking process, a
reasonable factfinder could conclude that the animus affected the employment
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decision”). Here, it is undisputed that Goulet was the sole decision-maker in
Smith’s termination, and Smith admits he never heard Goulet make any racially
charged comment.
Smith also failed to show specific and substantial circumstantial evidence of
pretext. First, it is irrelevant that Smith asserts he did not in fact threaten to shoot
Gardiner, that he states the person who reported that story to Goulet was lying, or
that Goulet did not conduct an investigation before firing Smith. The inquiry is
whether there was evidence from which a fact-finder could infer that Goulet and
Par did not truly believe the proffered reason for the termination. See Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). Smith put forth no
evidence to suggest that Goulet and Par did not honestly believe Smith had
threatened Gardiner.
Smith also argues he was treated less favorably than Gardiner. An
employer’s more favorable treatment of similarly situated employees can be
evidence of pretext, Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir.
2003), but the district court was correct that Gardiner and Smith were not
“similarly situated.” Smith apparently does not dispute Par’s evidence that
Gardiner, a lineman, was more skilled and more difficult to replace than Smith, a
groundman. Moreover, there is no evidence that Gardiner engaged in further
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disruptive acts after Goulet broke up the initial altercation; in contrast, Goulet
heard a report that led him to believe that Smith had threatened Gardiner’s life.
Finally, the district court properly gave weight to the fact that Goulet, who
terminated Smith’s employment in 2003, also made the decision to hire Smith in
2000 and rehire him in 2002. In this circuit, “where the same actor is responsible
for both the hiring and the firing of a discrimination plaintiff, and both actions
occur within a short period of time, a strong inference arises that there was no
discriminatory action.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1096 (9th
Cir. 2005) (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th
Cir. 1996)). Smith did not present “specific and substantial” circumstantial
evidence sufficient to overcome that same-actor inference, and has not presented
evidence from which a fact-finder could conclude that his employment was
terminated due to his race.
II.
Because Smith’s opening brief failed to present specific arguments regarding
his remaining claims, and we only review issues which are specifically and
distinctly argued in the party’s opening brief, any challenge to the district court’s
summary judgment for Par on his remaining claims is waived. See Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994).
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AFFIRMED.
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