Francisco Moreno v. Cox Communications Las Vegas

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2020
• Docket: 19-15715
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 26 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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,

2 347 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). 3 AFFIRMED.