Francisco Moreno v. Cox Communications Las Vegas ( 2020 )

FILED
NOT FOR PUBLICATION
AUG 26 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO MORENO, No. 19-15715
Plaintiff-Appellant, D.C. No.
2:17-cv-02583-JCM-NJK
v.
COX COMMUNICATIONS LAS MEMORANDUM*
VEGAS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted May 6, 2020**
Seattle, Washington
Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.
Francisco Moreno (Moreno), a Mexican male, appeals the district court’s
grant of summary judgment in favor of his employer Cox Communications (Cox).
*
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).
Cox terminated Moreno due to Moreno’s failure to disclose an arrest on his work
card application.
We review a grant of summary judgment de novo. See Sandoval v. County
of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018). We must determine, after “viewing
the evidence in the light most favorable to the nonmoving party, whether there are
any genuine issues of material fact and whether the district court correctly applied
the relevant substantive law.” L. F. v. Lake Washington Sch. Dist. #414, 947 F.3d
621, 625 (9th Cir. 2020) (citation omitted).
Moreno asserts a claim under Title VII of the Civil Rights Act of 1964 for
discrimination on the basis of race (Hispanic) and national origin (Mexican).
Courts utilize the McDonnell Douglas burden-shifting framework to evaluate
discrimination claims under Title VII. See Hawn v. Executive Jet Mgmt., Inc., 615
F.3d 1151, 1155 (9th Cir. 2010). Under this framework, an employee must first
establish a prima facie claim of discrimination. See Noyes v. Kelly Servs., 488 F.3d
1163, 1168 (9th Cir. 2007).
To establish a prima facie claim, a plaintiff must present evidence giving
rise to the inference that his employer treated him differently than similarly
situated individuals not belonging to the same protected class. See Leong v. Potter,
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347 F.3d 1117, 1124 (9th Cir. 2003). Once the employee establishes a prima facie
case, “the burden of production, but not persuasion, then shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the challenged action.”
Hawn, 615 F.3d at 1155 (citation omitted). If the employer meets this burden, the
employee is responsible for raising a triable issue of material fact as to whether the
employer’s reasons for its adverse employment action are pretext for unlawful
discrimination. See Noyes, 488 F.3d at 1168.
Moreno alleged that he was replaced by Mr. Seltz, a Caucasian male.
However, Moreno failed to provide evidence that he and Seltz were similarly
situated, namely that Seltz also failed to report an arrest on a work card application.
See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2004), as
amended (“[I]ndividuals are similarly situated when they have similar jobs and
display similar conduct”) (footnote reference omitted).
Even if Moreno were able to establish a prima facie claim, he failed to raise
a genuine issue of material fact as to pretext. See Noyes, 488 F.3d at 1170-1171(“[A]t the summary judgment stage, a plaintiff may raise a genuine issue of
material fact as to pretext via (1) direct evidence of the employer’s discriminatory
motive or (2) indirect evidence that undermines the credibility of the employer's
articulated reasons”) (citation omitted).
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AFFIRMED.
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