                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 2 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID G. CONTRERAS,                             No.    17-16598

                Plaintiff-Appellant,            D.C. No. 5:15-cv-03963-BLF

 v.
                                                MEMORANDUM*
GEORGE L. MEE MEMORIAL
HOSPITAL, AKA Mee Memorial Hospital,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                          Submitted December 20, 2018**
                             San Francisco, California

Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.

      David G. Contreras appeals from the district court’s grant of summary

judgment in favor of George L. Mee Memorial Hospital as to Contreras’s claims



      *
             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).
for age discrimination under the Age Discrimination in Employment Act (ADEA),

29 U.S.C. §§ 621–34, and California’s Fair Employment and Housing Act

(FEHA), Cal. Gov’t Code §§ 12900–96. We have jurisdiction under 28 U.S.C.

§ 1291. Reviewing de novo, Southland Sod Farms v. Stover Seed Co., 108 F.3d

1134, 1138 (9th Cir. 1997), we affirm.

      The district court properly held that the Hospital met its burden of

articulating a legitimate, nondiscriminatory reason for terminating Contreras’s

employment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Contreras failed to follow the Hospital’s protocol of securing patient valuables

during x-ray examinations despite receiving a final written warning notifying him

that failure to follow the protocol could result in the termination of his

employment.

      The district court also properly concluded that Contreras did not “raise a

triable issue of material fact as to whether the [Hospital’s] proffered reason[] for”

terminating Contreras’s employment was “mere pretext for unlawful

discrimination.” See Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012) (quoting

Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010)). Contreras

argues that other employees did not always follow the protocol. But even if true,

this evidence does not demonstrate pretext because Contreras is not similarly

situated with these other employees. See Vasquez v. County of Los Angeles, 349


                                           2
F.3d 634, 641 (9th Cir. 2003) (stating that employees are “similarly situated when

they have similar jobs and display similar conduct”) (emphasis added). No other

employee was accused of theft, whereas Contreras’s patients accused him of theft

on four prior occasions. After the Hospital gave Contreras a final written warning

instructing him to follow the protocol, another one of Contreras’s patients

complained of theft. The Hospital conducted an investigation and concluded—and

Contreras admitted—that he did not follow the protocol.1

      AFFIRMED.




1
  We decline to address Contreras’s argument that the district court applied the
incorrect causation standard to his FEHA claim because Contreras invited the
purported error. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th
Cir. 1992) (“The doctrine of invited error prevents a [litigant] from complaining of
an error that was his own fault.”).


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