                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             FEB 15 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JOHN BRAATEN,                                    No.   17-15394

              Plaintiff-Appellant,               D.C. No.
                                                 3:15-cv-00174-LRH-WGC
 v.

NEWMONT USA LIMITED,                             MEMORANDUM*

              Defendant-Appellee.


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

                          Submitted February 12, 2018**
                            San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and ILLSTON,*** 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 Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
                                                                            Page 2 of 3
      The district court properly granted summary judgment to Newmont USA

Limited (Newmont) on John Braaten’s claim under the Age Discrimination in

Employment Act (ADEA).

      1. The district court correctly held that Braaten failed to establish a prima

facie case of age discrimination. Because Braaten’s replacement was less than 10

years younger than Braaten, the age difference is “presumptively insubstantial.”

France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015). Braaten did not

overcome that presumption “by producing additional evidence to show that the

employer considered his . . . age to be significant.” Id. Instead, he admitted that

Newmont never discriminated against him before his termination; that no one

involved in his termination made any age-related comments; and that he did not

make an internal complaint of age discrimination during his termination, even

though he knew he could.

      2. The district court also correctly held that Braaten failed to raise a triable

issue that Newmont’s reason for terminating him was “unworthy of credence” and

thus pretextual. Diaz v. Eagle Produce Limited Partnership, 521 F.3d 1201, 1212

(9th Cir. 2008) (citation omitted). Braaten’s violation of Newmont’s policy, which

required him to report his DUI charge to Newmont, is a valid, non-pretextual

reason for termination as long as Newmont “honestly believed” that reason.
                                                                             Page 3 of 3
Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1063 (9th Cir. 2002) (citation

omitted). Braaten did not create a material dispute as to the sincerity of

Newmont’s belief about its reason for his termination. Newmont expressed

uncertainty as to whether it should give Braaten one reason for his termination

(violating the reporting policy) or multiple reasons (violating the reporting policy,

violating the short-term disability policy, and leaving work early). But having

multiple consistent reasons for termination does not suggest that any one of them is

pretextual. See Diaz, 521 F.3d at 1214.

      Nor does Newmont’s commitment to “progressive” discipline cast doubt on

Newmont’s sincerity in terminating Braaten for one violation. Under the

progressive discipline policy, the severity of the discipline depends on the severity

of the violation, and Braaten did not identify anyone who violated the reporting

policy and was not terminated.

      AFFIRMED.
