John Korkosz v. Clark County

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 17 2010

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

JOHN KORKOSZ, No. 09-15779

Petitioner - Appellant, D.C. No. 2:07-cv-00178-KJD-LRL

v.
MEMORANDUM *
CLARK COUNTY,

Respondent - Appellee.

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding

Submitted May 14, 2010**
San Francisco, California

Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, *** Senior
District Judge.

*
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).
***
The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
1
John Korkosz appeals from the district court’s grant of summary judgment

against him on his claims of disparate treatment under the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”) and retaliation in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”) and

the ADEA.

Korkosz was hired by Clark County as a Zoning Assistant in February of 1995.

In January of 2005, Korkosz appeared before an interview panel for the position of

Principal Planner in the Department of Comprehensive Planning. The January 2005

interview panel declined to recommend any of the interviewed applicants for the

position, and a second round of interviews was held in March of 2005. The March

2005 interview panel ultimately recommended Anthony Molloy for the position. In

June of 2005, Korkosz appeared before another interview panel to interview for the

position of Principal Planner in the Department of Development Services. The June

2005 interview panel recommended Robert Kaminski for the position.

On appeal, Korkosz contends that he presented sufficient evidence to establish

a prima facie case of disparate treatment under the ADEA because the age differences

between himself and the promoted applicants support an inference of age

discrimination.

An employee may establish a prima facie case of disparate treatment under the

2
ADEA using circumstantial evidence by demonstrating that: (1) he was at least 40

years old; (2) he was qualified for the position for which he applied; (3) he was not

promoted despite being well qualified; and (4) the position was given to a

substantially younger employee with equal or inferior qualifications. Diaz v. Eagle

Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing Coleman v. Quaker

Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). Establishing a prima facie case

requires the production of “evidence adequate to create an inference that an

employment decision is based on an illegal discriminatory criterion. In the age

discrimination context, such an inference cannot be drawn from the replacement of

one worker with another worker insignificantly younger.” O’Connor v. Consol. Coin

Caterers Corp., 517 U.S. 308, 312-13 (1996) (internal quotation marks, alterations

and citation omitted).

It is undisputed that Korkosz is only two years and ten months older than

Molloy and only three years and eleven months older than Kaminski. Such age

differences, without more, are insufficient to permit an inference of age

discrimination. E.g., Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981) (“If the

replacement is only slightly younger than the plaintiff, then it is less likely that an

inference of discrimination can be drawn.”). Korkosz provided no other direct or

circumstantial evidence to support his claim. Thus, Korkosz failed to establish a

3
prima facie case of age discrimination under the ADEA.

With respect to the grant of summary judgment on his retaliation claim,

Korkosz contends that he presented sufficient evidence to raise a genuine issue of

material fact directed to whether Clark County’s proffered legitimate,

nondiscriminatory reasons for failing to promote Korkosz constitute pretext.

The burden-shifting framework outlined in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), governs actions for retaliation under Title VII and the ADEA.

Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008). Under this

framework, if the employee establishes a prima face case of retaliation, the employee

has justified a presumption of retaliation, and the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory reason for its allegedly

retaliatory conduct. Metoyer v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007). If

the employer satisfies this burden of production, the presumption of unlawful

discrimination “drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 510-11 (1993). The employee must then provide evidence that creates a genuine

issue of material fact concerning whether the employer’s proffered nondiscriminatory

reason is merely pretext. Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,

1037 (9th Cir. 2005) (citing Coleman, 232 F.3d at 1282).

In the present case, Clark County articulated legitimate, nondiscriminatory

4
reasons for its decisions not to promote Korkosz, and Korkosz failed to provide any

evidence that these reasons were pretextual aside from his own uncorroborated, self-

serving speculation. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

Cir. 2002) (finding that uncorroborated, self-serving testimony alone does not create

a genuine issue of material fact precluding summary judgment). Thus, Korkosz failed

to offer any evidence which created a genuine issue of material fact on the issue of

whether Clark County’s nondiscriminatory reasons for declining to promote Korkosz

were pretextual, and summary judgment properly was entered on Korkosz’s retaliation

claim.

AFFIRMED.