FILED
NOT FOR PUBLICATION
NOV 18 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT FRIED, No. 20-15710
Plaintiff-Appellant, D.C. No.
2:18-cv-00689-APG-BNW
v.
WYNN LAS VEGAS, LLC, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted May 5, 2021
Seattle, Washington
Before: CHRISTEN and BENNETT, Circuit Judges, and SILVER,** District
Judge.
Vincent Fried appeals the district court’s order granting summary judgment
to Wynn Las Vegas, LLC, on his claims for sex discrimination, retaliation, and
hostile work environment. We review de novo. See Branch Banking & Tr. Co. v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, Senior United States District Judge
for the District of Arizona, sitting by designation.
D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We must determine whether
there are any genuine issues of material fact and whether the district court correctly
applied the relevant substantive law, viewing the evidence in the light most
favorable to Fried. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th
Cir. 2004). We may affirm on any ground supported by the record. Id. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s dismissal of
Fried’s claims for sex discrimination and retaliation pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1, 2
1. The district court concluded that Fried established a prima facie case
of sex discrimination pursuant to Title VII. To establish a prima facie case of
discrimination, a plaintiff must prove that: (1) he belongs to a class of persons
protected by Title VII; (2) he performed his job satisfactorily; (3) he suffered an
adverse employment action; and (4) his employer treated him differently than a
similarly situated employee who does not belong to the same protected class as
him. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir.
2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
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The district court also granted summary judgment to Wynn on Fried’s
claim for hostile work environment. We reverse that decision in a concurrently
filed opinion.
2
Because the parties are familiar with the facts, we recite only those
necessary to decide this appeal.
2
We assume without deciding that Fried satisfied the first three parts of the
four-part test, but he fails to raise a genuine dispute of fact as to the fourth part.
“[E]mployees are similarly situated to the plaintiff when they ‘have similar jobs
and display similar conduct.’” Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,
1114 (9th Cir. 2011) (quoting Vasquez v. County of Los Angeles, 349 F.3d 634,
641 (9th Cir. 2003)). “The employees need not be identical, but must be similar in
material respects.” Id. “Materiality depends on the context and is a question of
fact that ‘cannot be mechanically resolved.’” Id. (quoting Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010)). The similarly situated inquiry
is “not an unyielding, inflexible requirement that requires near one-to-one mapping
between employees because one can always find distinctions in performance
histories or the nature of the alleged transgressions.” Id. at 1115 (internal
quotation marks omitted) (quoting Humphries v. CBOCS W., Inc., 474 F.3d 387,
405 (7th Cir. 2007)).
The proper comparator to Fried is the female salon attendant who, like him,
was fired for her role in serving alcohol to minors—not the female manicurists
who were not fired. This is the correct comparison because Wynn determined in
its investigation that Fried and the attendant knew Fried’s customer was under 21
years old yet the attendant served the customer champagne and Fried did not stop
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the customer from drinking it, despite having interacted with her multiple times. In
contrast, Fried did not raise a dispute of fact about whether any of the female
manicurists actually knew their customers were under 21 years old. This
difference between Fried and the female manicurists is material. See Vasquez, 349
F.3d at 641–42 (ruling that two employees with the same job were not similarly
situated because they “did not engage in problematic conduct of” the same
“comparable seriousness”). Because Fried did not show that Wynn treated him
differently than a similarly situated employee of the opposite sex, he did not
establish a prima facie case of sex discrimination.
Even if Fried had established a prima facie case of sex discrimination, his
sex-discrimination claim would fail. If a plaintiff establishes a prima facie case of
discrimination, “[t]he burden of production, but not persuasion, then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for the
challenged action.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115,
1123–24 (9th Cir. 2000). “If the employer does so, the plaintiff must show that the
articulated reason is pretextual ‘either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.’” Id. at 1124
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “In
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judging whether [an employer’s] proffered justifications [are] ‘false,’ it is not
important whether they were objectively false”; “courts only require that an
employer honestly believed its reasons for its actions, even if its reason is foolish
or trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1063 (9th Cir. 2002) (internal quotation marks omitted) (quoting Johnson v.
Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)). A plaintiff may rely on
circumstantial evidence to show pretext, but “such evidence must be both specific
and substantial.” Id. at 1062.
Fried argues the evidence shows that Wynn’s explanation for firing him was
pretextual for three reasons. First, Fried asserts that Wynn’s explanation is
unworthy of credence because—despite surveillance footage showing him
interacting with his customer while she had a glass of champagne—he actually did
not know his customer was served champagne. But what Fried actually knew is
beside the point: he did not establish a disputed fact about whether Wynn honestly
believed Fried knew his customer was served champagne. See id. at 1063.
Second, Fried asserts the fact that other female manicurists were not fired shows
pretext because they knew their customers had champagne and did not ask if they
were of age. But for the reasons discussed above, the female manicurists were not
similarly situated to Fried, and Fried did not point to evidence that could support a
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finding that Wynn honestly believed the female manicurists knew their customers
were underage. Last, Fried asserts that Wynn’s decision to fire him was illogical,
showing pretext, because he was the only manicurist who followed Wynn’s policy
of asking those who appear under 30 years old if they were of legal drinking age.
Although Wynn’s decision might be unfair or illogical, this circumstantial
evidence is not by itself “substantial,” id. at 1062, and thus does not show that
Wynn’s explanation for firing Fried was pretextual.
2. To establish a prima facie case of retaliation, a plaintiff must prove
that: (1) he engaged in protected activity; (2) he suffered a materially adverse
employment action; and (3) a causal relationship existed between the two.
Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir.
2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
“An employee engages in protected activity when [he] opposes an employment
practice that either violates Title VII or that the employee reasonably believes
violates that law.” Id.
“Title VII retaliation claims require proof that the desire to retaliate was the
but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 352 (2013). “That an employer’s actions were caused by an
employee’s engagement in protected activities may be inferred from ‘proximity in
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time between the protected action and the allegedly retaliatory employment
decision.’” Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (quoting
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). “In addition, the
plaintiff must make some showing sufficient for a reasonable trier of fact to infer
that the defendant was aware that the plaintiff had engaged in protected activity.”
Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir.
2003).
Fried argues that Wynn fired him in retaliation for him reporting a male
customer’s sexual advances and that causation is shown because he was fired
fifteen days after his report. The district court did not err by rejecting this
argument. Fried ignores that the day after he reported the customer’s conduct, he
allowed an underage customer to consume alcohol in violation of Wynn’s policies.
Thus, Fried failed to show there is a dispute of fact about whether Wynn’s “desire
to retaliate was the but-for cause” of his termination. Nassar, 570 U.S. at 352.
AFFIRMED.
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