                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 23 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LESTER DECKER,                                   No. 14-15051

              Plaintiff - Appellant,             D.C. No. 3:12-cv-00287-LRH-
                                                 WGC
 v.

BARRICK GOLDSTRIKE MINES, INC.,                  MEMORANDUM*

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted February 11, 2016**
                             San Francisco, California

Before: NOONAN, W. FLETCHER, and MURGUIA, Circuit Judges.

      This is an employment discrimination action. Plaintiff Lester Decker appeals

from the district court’s order granting summary judgment to defendant Barrick

Goldstrike Mines (“Barrick”) as to his claims under the Age Discrimination in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), and Title VII the Civil Rights Act

of 1964, 42 U.S.C. § 2000e–2(a)(1) (“Title VII”). We AFFIRM.

      Decker is a Native American man, and was 57 years of age at the time of the

events that gave rise to this action. Decker was employed by Barrick—a mining

company—as an equipment operator, and had worked for the company for eighteen

years. Decker claims that he was terminated as a result of age and race discrimination.

Barrick claims that it terminated Decker in response to his willful violation of

company safety policies. Decker drove a bus carrying eight crew members up a ramp

that he was specifically advised to avoid because it was closed to “haul traffic.” He

continued to drive the bus even when blinded by the sun, and ultimately crashed into

a construction site, causing over $20,000 in damage to the bus and injuries to many

of the passengers.

      This Court reviews a district court’s grant of summary judgment de novo.

Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1408 (9th Cir. 1996). Viewing the

evidence in the light most favorable to the nonmoving party, the Court must determine

whether there are any genuine issues of material fact which would preclude summary

judgement, and whether the district court correctly applied the substantive law. United

States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003).




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1. The district court erred in holding that Barrick’s non-discriminatory reason for

termination—Decker’s violation of various company policies which caused the bus

accident—precluded Decker from making a prima facie showing that he was

performing the job satisfactorily under the ADEA and Title VII. Specifically, the trial

court misapplied the McDonnell Douglas framework by confusing the minimal

showing a plaintiff must make at the prima facie stage with the more substantial

showing required at the pretext stage. See Aragon v. Republic Silver State Disposal

Inc. 292 F.3d 654, 659 (9th Cir. 2002); Lynn v. Regents of Univ. of Cal., 656 F.2d

1337, 1344 (9th Cir. 1981). Decker introduced evidence showing that aside from a

small number of safety violations, his eighteen-year tenure with Barrick was

unblemished. It is also undisputed that he possessed the requisite training, experience,

and knowledge to perform the job satisfactorily. This is a sufficient prima facie

showing of qualification to survive summary judgment. See Diaz v. Eagle Produce

Ltd. P’ship, 521 F.3d 1201, 1208 (9th Cir. 2008); Lynn, 656 F.2d at 1342; Aragon,

292 F.3d at 659-60.



2. This district court similarly erred in holding that Decker failed to make a prima

facie showing that he was treated less favorably than similarly situated non-Native

American employees. Decker pointed to non-Native American employees who were


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not terminated after committing safety violations. This was sufficient to make a prima

facie showing. See Aragon, 292 F.3d at 660, 663-64; Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1158 (9th Cir. 2010).



3. However, we ultimately affirm the district court’s ruling because Decker failed to

raise a triable issue of fact as to whether Barrick’s proffered reason for terminating

him was a pretext for discrimination on the basis of his age or Native American

heritage. The bulk of Decker’s evidence in support of his case consists of a litany of

safety violations committed by younger and/or non-Native American employees that

did not result in termination. However, Decker failed to show that these other

employees were similarly situated “in all material respects.” Hawn, 615 F.3d at 1157

(citation omitted). Many did not “have similar jobs and display similar conduct” as

Decker. Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). In other

cases, Decker simply failed to introduce evidence of the age or race of the alleged

comparators.



4. Decker’s proffered evidence of discriminatory animus is also unavailing. Decker

testified that his supervisor, Steve Lindskog, called him “old man” on several

occasions and also made inappropriate racial jokes that characterized Native


                                          4
Americans as being unemployed alcoholics. However, Decker admitted that he had

no reason to believe that Lindskog harbored any ill-will towards him on account of

his Native American heritage or age. Furthermore, while Lindskog’s racial comments

in particular evince a lamentable degree of intolerance, this Court has distinguished

between derogatory statements that are linked to the adverse employment action from

those that are merely impolitic expressions of personal prejudice. We have held that

a supervisor’s discriminatory comments “are only significant because they originate

from a person with influence over the termination decision.” Xin Liu v. Amway Corp.,

347 F.3d 1125, 1142 (9th Cir. 2003); see also France v. Johnson, 795 F.3d 1170,

1173 (9th Cir. 2015) (citing Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th

Cir.1990)); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993); Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996). Lindskog was neither

a signatory to the report which recommended Decker’s termination, nor was he the

final decision-maker who ultimately adopted the report’s recommendation. His

unsavory comments therefore do not constitute direct evidence of discriminatory

animus. See also Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1051 (9th Cir.

1987).




                                         5
5. Decker has therefore failed to introduce direct evidence of discrimination or

“specific and substantial” circumstantial evidence that Barrick’s proffered legitimate

reason for termination was pretextual. See Villiarimo v. Aloha Island Air, Inc., 281

F.3d 1054, 1062-63 (9th Cir. 2002). Accordingly, we AFFIRM.




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