NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAYLE MCCOY, No. 16-16945
Plaintiff-Appellant, D.C. No.
3:15-cv-00188-LRH-WGC
v.
BARRICK GOLD OF NORTH AMERICA, MEMORANDUM*
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 5, 2017**
San Francisco, California
Before: KOZINSKI and HURWITZ, Circuit Judges, and KEELEY,*** District
Judge.
1. McCoy argues that the district court improperly collapsed the burden-
*
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 Irene M. Keeley, United States District Judge for the
U.S. District Court for the Northern District of West Virginia, sitting by
designation.
shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). But under any analytical framework, McCoy had the burden of providing
some evidence that Barrick’s proffered reason for his termination—poor job
performance—was pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000) (“[T]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)).
The district court properly concluded that McCoy failed to “raise a genuine
factual question as to whether the proffered reason is pretextual.” Shelley v. Geren,
666 F.3d 599, 609 (9th Cir. 2012). A single favorable performance review was
insufficient to create a triable issue on pretext in light of McCoy’s numerous
undisputed safety violations. Replacement by a younger employee is part of a prima
facie case of discrimination, but does not show pretext. See Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1281–82 (9th Cir. 2000). Asking an employee who is eligible
for retirement and performing unsatisfactorily about retirement does not give rise to
an inference of age discrimination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890
(9th Cir. 1994) (“[A] plaintiff cannot defeat summary judgment simply by making
out a prima facie case”) (citation and quotation marks omitted).
2. Any claimed error from the district court’s application of the “same-
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actor inference” was harmless. The inference was immaterial because McCoy failed
to show that his age caused his termination.
3. The only evidence McCoy provided to support his claim that he was
fired for claiming worker’s compensation was that he was terminated eleven months
after an October 2013 accident. The district court correctly concluded the temporal
proximity of the two events was not sufficient to give rise to an inference of
retaliation.
AFFIRMED.
3