Malinda Slaton v. L.L.O., Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALINDA SLATON, No. 20-15808
Plaintiff-Appellant, D.C. No.
2:17-cv-01561-RFB-DJA
v.
L.L.O., INC., DBA Acme Electric, MEMORANDUM*
Defendant-Appellee,
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
UNION 357,
Defendant.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted March 12, 2021**
Las Vegas, Nevada
Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges.
*
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).
Malinda Slaton appeals the district court’s order of summary judgment in
favor of L.L.O, Inc., on her claim of discrimination under Title VII of the Civil
Rights Act of 1964. 42 U.S.C. § 2000e-2. We have jurisdiction under 28 U.S.C. §
1291. Reviewing the district court’s summary judgment de novo, Universal
Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004), we affirm.
The district court correctly concluded that Slaton failed to carry her initial
burden to establish that similarly situated men were treated more favorably than
her, which was an essential element of her prima facie case. Chuang v. Univ. of
Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). On October 26,
2016, a supervisor admonished Slaton and unspecified members of her truck crew
that failure to report damage to company equipment would result in termination.
Two days later, Slaton was involved in an incident where company equipment was
damaged, and she did not immediately report that damage to her supervisor. The
supervisor fired Slaton, for “fail[ing] to report damage to company equipment.”
Slaton claimed that several male employees caused damage to company equipment
without being fired. But a rational juror would not be able to discern if the male
employees were similarly situated to Slaton. See Moran v. Selig, 447 F.3d 748,
755 (9th Cir. 2006) (holding that to prove that one is “similarly situated,” a
plaintiff must show that they are similarly situated “in all material respects”). The
2
incidents cited mostly occurred before the supervisor’s warning, and Slaton failed
to specify if those men were otherwise warned. Although one incident occurred
the day after the October 26 warning, Slaton did not specify whether the
individual, Carrello, received that warning or any other warning. It also appears he
reported the damage. Viewing the evidence in the light most favorable to Slaton, a
juror would not be able to infer unlawful discrimination.
AFFIRMED.
3