FILED
NOT FOR PUBLICATION APR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY DIDIANA, No. 10-17527
Plaintiff - Appellant, D.C. No. 2:08-cv-01314-JCM-
PAL
v.
PARBALL CORPORATION, a Nevada MEMORANDUM *
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 26, 2012
Tucson, Arizona
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Anthony DiDiana (“DiDiana”) appeals the district court’s grant of summary
judgment in favor of Parball Corporation (“Parball”). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
To prevail on his gender discrimination claim, DiDiana must either (1)
present direct or circumstantial evidence of discrimination, or (2) satisfy the
burden-shifting analysis described in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). To satisfy the burden shifting framework, DiDiana must
make a prima facie case either by (1) presenting direct evidence of discrimination,
or (2) presenting evidence satisfying each of four requirements described by our
previous gender discrimination cases. See, e.g., Hawn v. Exec. Jet Mgmt., Inc., 615
F.3d 1151, 1156 (9th Cir. 2010); Peterson v. Hewlett-Packard Co., 358 F.3d 599,
603 (9th Cir. 2004). DiDiana does not satisfy these requirements.
DiDiana’s proffered evidence did not conclusively show an intent to
discriminate on the basis of gender. See Vasquez v. County of Los Angeles, 349
F.3d 634, 640 (9th Cir. 2003) (direct evidence must prove a fact without “inference
or presumption” (internal quotation marks omitted)). Nor did it satisfy the
four-prong test for a prima facie case, which required DiDiana to show that (1) he
belongs to a protected class; (2) he was performing to Parball’s legitimate
expectations; (3) he suffered an adverse employment action; and (4) similarly
situated employees outside the protected class were treated more favorably or the
circumstances gave rise to an inference of discrimination. Hawn, 615 F.3d at
1156. DiDiana did not satisfy this test because, even if cocktail servers were
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similarly situated employees, the evidence showed that a female employee actually
caught misappropriating funds was terminated. He also was not performing to
Parball’s legitimate expectations.
Even if DiDiana could establish a prima facie case of gender discrimination,
Parball offered a nondiscriminatory reason for his termination, and DiDiana failed
to create a genuine issue of material fact regarding whether Parball’s proffered
reason was pretextual. McDonnell Douglas, 411 U.S. at 804. Because “at least
one other similarly situated employee . . . was treated in a similar manner as
[DiDiana],” that evidence negates “any showing of pretext” and therefore defeats
DiDiana’s claim. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th
Cir. 2001).
We also affirm the grant of summary judgment in favor of Parball on
DiDiana’s age discrimination claim. To prevail on a claim for age discrimination,
DiDiana must prove at trial that age was the “but-for” cause of the employer’s
adverse action. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352 (2009).
DiDiana misappropriated company funds on more than one occasion; no
reasonable juror could find that this job performance was satisfactory and that age
not only compelled the adverse employment action, but was the but-for cause of
termination. Id.; see also Diaz v. Eagle Prod. Ltd. P’ship, 521 F.3d 1201, 1208
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(9th Cir. 2008). DiDiana’s evidence fails to clear this high hurdle, even when
evidence of Parball’s age-based proposal is considered in the light most favorable
to DiDiana. Therefore, the district court correctly concluded that DiDiana failed to
make a prima facie case for age discrimination.
AFFIRMED.
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