NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TONY COLAGIOVANNI, No. 15-15782
Plaintiff-Appellant, D.C. No.
2:13-cv-01508-APG-GWF
v.
CH2M HILL, INC., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted April 21, 2017
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and LOGAN,** District
Judge.
This is an appeal from a grant of summary judgment in favor of the
employer in plaintiff’s suit alleging breach of a Business Conduct Agreement
containing a provision barring retaliation for reporting misconduct.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Steven Paul Logan, United States District Judge for
the District of Arizona, sitting by designation.
The district court ruled on the basis of an Employee Administration
Agreement, which provided that plaintiff was an employee at will and therefore
could be terminated for any reason. Although we conclude the employer was also
bound by the terms of the Business Conduct Agreement, this does not end the
analysis. We can affirm summary judgment on the basis of any ground supported
by the record. See Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730,
734 (9th Cir. 2012).
The issue is whether there is any triable issue of fact concerning whether the
plaintiff was terminated for reporting misconduct, rather than on the basis of
another, non-retaliatory reason. Under Nevada law, the plaintiff has to show not
only the existence of a valid contract, but also a breach by his employer. See
Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 899 (9th Cir. 2013). We
conclude there is no triable issue as to whether the employer breached. Even
assuming that the more recent actions of plaintiff’s co-worker, Kenneth Gilbreth,
amounted to misconduct, plaintiff made no report of those actions that could have
formed the basis for retaliatory termination. The employer gave a non-retaliative
reason for the termination. Summary judgment was appropriate. See Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (affirming summary
judgment where employee’s evidence was “not sufficiently probative that it would
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allow a reasonable factfinder to conclude either that the alleged reason for his
discharge was false, or that the true reason for his discharge was a discriminatory
one”). We therefore affirm.
AFFIRMED.
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