FILED
NOT FOR PUBLICATION
JAN 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY TUKAY, No. 16-15388
Plaintiff-Appellant, D.C. No. 3:14-cv-04343-JST
v.
MEMORANDUM*
UNITED AIRLINES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted January 8, 2018**
San Francisco, California
Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.
Plaintiff-Appellant Henry Tukay (Tukay) appeals from the district court’s
order granting summary judgment in favor of Defendant-Appellee United Airlines,
Inc. (United) on Tukay’s claims of discrimination, retaliation, and wrongful
*
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).
termination. United terminated Tukay after an internal investigation revealed that
Tukay had vandalized another employee’s vehicle. We review the district court’s
grant of summary judgment de novo, and we affirm. See Reynaga v. Roseburg
Forest Prods., 847 F.3d 678, 685 (9th Cir. 2017).
Under the McDonnell Douglas1 burden-shifting framework, a complainant
bringing a disparate treatment action under Title VII must demonstrate a prima
facie case by “offer[ing] evidence that gives rise to an inference of unlawful
discrimination.” Id. at 690 (citation, alteration, and internal quotation marks
omitted). Such inference will arise when the plaintiff establishes four elements:
“(1) the plaintiff belongs to a protected class, (2) he was performing according to
his employer’s legitimate expectations, (3) he suffered an adverse employment
action, and (4) similarly situated employees were treated more favorably. . . .” Id.
at 691.
Tukay failed to identify any similarly-situated employees enjoying more
favorable treatment, or other circumstances suggesting that racial discrimination
motivated United’s decision to terminate him. See Vasquez v. Cty. 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
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
2
reference omitted). Although Tukay overheard a former supervisor make an
isolated discriminatory remark, Tukay’s failure to “show a nexus between [the]
discriminatory remark[] and [United’s] subsequent employment decisions” renders
this evidence insufficient to make the required showing for a prima facie case of
discrimination. Id. at 640 (footnote reference omitted).
Similarly, Tukay has not demonstrated a prima facie case of unlawful
retaliation. To prevail on a claim for retaliation, Tukay must establish that he
engaged in a protected activity, United thereafter “subjected him to an adverse
employment action,” and a causal link existed between the protected activity and
the adverse employment action. Id. at 646 (footnote reference omitted). Although
Tukay properly identified his termination as an adverse employment action, his
failure to establish any causal link between his engagement in protected activity
and subsequent termination is fatal to his claim for relief. See id.
Tukay’s wrongful termination claim—based on the same facts as his
discrimination and retaliation claims—necessarily fails. See Merrick v. Hilton
Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir. 2017).
AFFIRMED.
3