                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT R. NORTON,                                No.   14-17021

              Plaintiff-Appellant,               D.C. No.
                                                 3:13-cv-00169-RCJ-WGC
 v.

PHC-ELKO, INC., agent of Northeastern            MEMORANDUM*
Nevada Regional Hospital,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                          Submitted November 18, 2016**
                             San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Robert Norton appeals the district court’s order granting summary judgment

in favor of PHC-ELKO, Inc., on Norton’s Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12112, 12203, Age Discrimination in Employment Act (ADEA), 29

      *
             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).
U.S.C. § 626 et seq., breach of contract, and breach of the implied covenant of

good faith and fair dealing claims.

       We affirm the district court’s grant of summary judgment. Norton did not

establish a genuine issue of material fact that his former employer’s proffered

reason for firing him—that he improperly shaved time off of his employees’ time

records—was pretext. Norton also did not establish any genuine issue as to his

status as an at-will employee.

       The parties agree that the burden shifting framework announced in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to both Norton’s

ADA and ADEA claims. Under the McDonnell Douglas framework, once the

plaintiff establishes a prima facie case of discrimination, the burden shifts “to the

employer to articulate some legitimate, nondiscriminatory reason” for the adverse

employment action. 411 U.S. at 802. If the employer articulates a legitimate,

nondiscriminatory reason for the action, the burden shifts back to the plaintiff to

establish that the stated reason for the adverse action “was in fact pretext.” Id. at

804.

       Norton’s ADA retaliation and discrimination claims fail because he cannot

show that the Hospital’s proffered reason for firing him was pretext. As evidence

of pretext Norton cites the following: three statements made by Gene Miller, the


                                           2
Hospital’s Chief Executive Officer, that did not explicitly reference Norton’s age

or disability; purported comparator evidence; the fact that he was never confronted

with specific time card edits or the results of the investigation; Norton’s assertion

that two Hospital employees overstated their case when they declared under oath

that “Norton admitted that he had been shaving his employees’ time and that he

had done so without their knowledge or permission,” that he believed he was

following company policy and the issue of Norton’s time card editing had been

successfully addressed with the Hospital’s Human Resources Director; and that

other directors were counseled not to do time card edits anymore.

      Norton’s evidence does not create a genuine issue of material fact that the

Hospital’s proffered reason for firing him was pretext. Norton cited two

statements from Miller without providing the context or the content of the

conversations that prompted them. The final statement—that Miller told Norton

the Hospital did not want people like Norton around—was said in the context of

Miller being fired for what the Hospital believed to be unlawful time shaving.

      Norton’s comparator evidence is also not persuasive. The one employee

Norton identified by name who engaged in the same time editing as Norton was his

subordinate. She was not similarly situated to Norton and not a valid comparator.

See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“Employees


                                           3
in supervisory positions are generally deemed not to be similarly situated to lower

level employees.”). The “other directors” who engaged in time card editing did so

in ways that were substantially different from Norton, both in frequency and reason

for editing. The Hospital appropriately found that their editing did not constitute

misconduct. These employees were neither similarly situated nor valid

comparators. See Vasquez, 349 F.3d at 641 (holding employees were not similarly

situated when they “did not engage in problematic conduct of comparable

seriousness”). Even assuming that the behavior of the other directors was

misconduct, we “distinguish[] misconduct by one employee from misconduct by

another employee on the basis of whether it prompted complaints or consternation

by other employees.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1160 (9th

Cir. 2010). Complaints were lodged against only Norton. Norton’s other evidence

is primarily comprised of conclusory and self-serving allegations that are

insufficient to survive summary judgment. See F.T.C. v. Publ’g Clearing House,

Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). Norton’s personal belief as to the

propriety of his actions does not create a genuine issue of material fact. See

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028–29 n.6 (9th Cir.

2006). Finally, that after his termination other directors were counseled not to edit

time records, and that the Hospital paid Dietary Department employees for the


                                          4
shaved time, support the Hospital’s proffered reason for firing Norton. Norton did

not create a genuine issue of material fact as to pretext.

       The district court also properly granted summary judgment on Norton’s

ADEA discrimination claim because Norton similarly did not create a genuine

issue as to pretext. Norton relied primarily on the same evidence to establish

pretext for his ADEA claims as he did for the ADA claim. For the reasons stated

above, that evidence does not defeat summary judgment. He also asserts that

“[o]thers in Norton’s age bracket were treated poorly.” However, Norton does not

provide the ages of these “others,” nor does he give specific evidence of how they

were “treated poorly.” These uncorroborated, self-serving, conclusory statements

do not create a genuine issue of material fact as to pretext. See Nigro v. Sears,

Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). The district court therefore

properly granted summary judgment to PHC-ELKO, Inc.

       Finally, Norton argues that the Hospital breached his employment contract

and violated the implied covenant of good faith and fair dealing. Norton argues

that his original offer letter, the Employee Handbook, and the Hospital’s use of the

Handbook in his discharge decision, create a genuine dispute of material fact as to

whether he had an employment contract with the Hospital. Norton’s argument

fails. First, the disclaimer in his offer letter, “[n]either this letter or any other


                                             5
document, nor any of our previous or later conversations, are intended to be an

employment contract expressed or implied,” refers to documents and discussions

that may occur in the future, after he has accepted employment. The Supreme

Court of Nevada has held that similar language represents at-will language. See

Martin v. Sears, Roebuck & Co., 899 P.2d 551, 554–55 (Nev. 1995). Second, the

policies and clauses outlined in the Employee Handbook do not include promissory

language that created an implied employment contract. See, e.g., D’Angelo v.

Gardner, 819 P.2d 206, 210–11 (Nev. 1991). Finally, the Handbook contains a

disclaimer reinforcing that employees are at-will and the Handbook does not create

an implied employment contract. Because there is a disclaimer and no

contradicting promissory language, the Handbook does not create an implied

contract or otherwise alter Norton’s at-will employment status. See Sw. Gas Corp.

v. Vargas, 901 P.2d 693, 698 (Nev. 1995).

      AFFIRMED.




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