FILED
NOT FOR PUBLICATION
NOV 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS KNICKMEYER, No. 16-15740
Plaintiff-Appellant, D.C. No.
2:14-cv-00231-JCM-PAL
v.
STATE OF NEVADA ex rel. EIGHTH MEMORANDUM*
JUDICIAL DISTRICT COURT,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 12, 2017**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,*** District Judge.
*
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).
***
The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Appellant Thomas Knickmeyer (“Knickmeyer”) worked as a marshal for the
Eighth Judicial District Court in Clark County, Nevada (the “EJDC”). During
2012 and 2013, the EJDC received a number of complaints alleging that
Knickmeyer had committed misconduct. The alleged misbehavior included
misogynistic comments, inappropriately touching prisoners, disparaging his
supervisors, and falling asleep during a calendar call. The EJDC investigated the
complaints, found them to have merit, and terminated Knickmeyer’s employment
in November 2013.
Knickmeyer thereafter filed this civil action against the State of Nevada (the
“State”) challenging his working conditions and his termination as violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He alleged,
among other things, that his supervisor subjected him to a racially hostile
workplace environment and that he was terminated in retaliation for reporting
racial discrimination internally and to the Nevada Equal Rights Commission (the
“NERC”).
The district court granted summary judgment in favor of the State on both of
Knickmeyer’s Title VII claims.1 The district court held that Knickmeyer’s hostile
1
Knickmeyer does not pursue on appeal his claim that his termination was
in direct violation of Title VII.
2
work environment claim failed because Knickmeyer did not present sufficient
evidence that he was subjected to severe or pervasive race-based harassment. The
court also held that Knickmeyer’s retaliatory discharge claim failed because
Knickmeyer did not present sufficient evidence that his protected activity was a
but-for cause of his termination. Knickmeyer appeals, and we affirm.
In order to prevail on his hostile work environment claim, Knickmeyer was
required to show, among other things, that the alleged harassment “was sufficiently
severe or pervasive to alter the conditions of [his] employment and create an
abusive work environment.” Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.
2002) (quotations omitted). He failed to do so. The comments he complained of
were isolated in nature, and “[s]imply causing an employee offense based on an
isolated comment is not sufficient to create actionable harassment under Title VII.”
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (citation
omitted). Knickmeyer also presented hearsay statements in support of his hostile
work environment claim, which the district court properly disregarded. See Beyene
v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (“[O]nly
admissible evidence may be considered by the trial court in ruling on a motion for
summary judgment.”).
3
The State was likewise entitled to summary judgment on Knickmeyer’s
retaliatory discharge claim. As the district court properly concluded, Knickmeyer
did not present sufficient evidence that his protected activity – filing
race-discrimination complaints internally at the EJDC and with the NERC – was a
“but-for” cause of his termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2533 (2013); Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (considering causation in the context of a retaliation claim by reference to
the time “between an employer’s knowledge of protected activity and an adverse
employment action”) (emphasis added). Knickmeyer failed to show that his
protected activity and his termination were so close as to support an inference of
but-for causation.
Knickmeyer also argued that other allegedly suspicious timing supported an
inference of but-for causation. But the fact that he was not fired until October
2013 is more plausibly explained by the fact that the EJDC spent many months
carefully investigating the allegations against him.
Finally, during post-termination arbitration proceedings, Knickmeyer
testified that he believed he was fired because of his political incorrectness. This
testimony precludes a finding that his protected activity was a but-for cause of his
termination.
4
The judgment of the district court is AFFIRMED.
5