                             NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                       OCT 24 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

DUANE HUTCHINGS,                                No.   16-16202

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cv-01712-JAD-PAL
and

BART STEPHENS,                                  MEMORANDUM*

                Plaintiff,

 v.

ONE NEVADA CREDIT UNION, FKA
Nevada Federal Credit Union,

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                             Submitted October 20, 2017**
                               San Francisco, California




      *
             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).
Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,*** District Judge.

      Duane Hutchings was employed at One Nevada Credit Union selling

insurance. After One Nevada discovered Hutchings had a second job selling real

estate in violation of the company’s conflict of interest and outside employment

policies, it asked him to choose between the two jobs. Hutchings refused to stop

selling real estate, and One Nevada fired him.

      In this suit, Hutchings alleges gender discrimination in violation of Title VII

of the Civil Rights Act of 1964 and Nev. Rev. Stat. § 613.330(1)(a), and a cause of

action for common law negligent infliction of emotional distress. The district court

granted One Nevada’s motion for summary judgment. We have jurisdiction of

Hutchings’ appeal under 28 U.S.C. § 1291 and affirm.

      1.    Hutchings argues that One Nevada discriminated against him by

terminating him for selling real estate, while a female employee with a real estate

license, Barbara Higgins, was not terminated. But, Hutchings provided no evidence

that Higgins sold real estate while employed at One Nevada; indeed, the only record

evidence is that she did not.1 By contrast, Hutchings actively sold real estate while



      ***
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
       Hutchings points to an internet printout listing Higgins’s real estate license as
active since 2009, but he does not respond to One Nevada’s argument that Hutchings


                                           2
employed at One Nevada. Because Hutchings failed to show that any similarly

situated female employees were treated more favorably than him, he failed to

establish a prima facie case of gender discrimination under either Title VII or Nevada

law. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (requiring

employees to “be similar in all material respects,” including “similar jobs” and

“similar conduct”); Apeceche v. White Pine Cty., 615 P.2d 975, 977 (Nev. 1980)

(applying same analysis to claims under Title VII and Nev. Rev. Stat.

§ 613.330(1)(a)).

      2. Because Hutchings provided no “proof of serious emotional distress

causing physical injury or illness,” let alone any evidence of negligence by One

Nevada, the district court correctly granted summary judgment to One Nevada on

this claim. Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev. 2000).

      AFFIRMED.




never properly authenticated this evidence. The district court properly found the
document inadmissible, and we likewise will not consider it on appeal. See Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

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