                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           JUN 28 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
TONY COLAGIOVANNI,                               No.   15-15782

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-01508-APG-GWF
 v.

CH2M HILL, INC.,                                 MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                       Argued and Submitted April 21, 2017
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and LOGAN,** District
Judge.

      This is an appeal from a grant of summary judgment in favor of the

employer in plaintiff’s suit alleging breach of a Business Conduct Agreement

containing a provision barring retaliation for reporting misconduct.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Steven Paul Logan, United States District Judge for
the District of Arizona, sitting by designation.
      The district court ruled on the basis of an Employee Administration

Agreement, which provided that plaintiff was an employee at will and therefore

could be terminated for any reason. Although we conclude the employer was also

bound by the terms of the Business Conduct Agreement, this does not end the

analysis. We can affirm summary judgment on the basis of any ground supported

by the record. See Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730,

734 (9th Cir. 2012).

      The issue is whether there is any triable issue of fact concerning whether the

plaintiff was terminated for reporting misconduct, rather than on the basis of

another, non-retaliatory reason. Under Nevada law, the plaintiff has to show not

only the existence of a valid contract, but also a breach by his employer. See

Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 899 (9th Cir. 2013). We

conclude there is no triable issue as to whether the employer breached. Even

assuming that the more recent actions of plaintiff’s co-worker, Kenneth Gilbreth,

amounted to misconduct, plaintiff made no report of those actions that could have

formed the basis for retaliatory termination. The employer gave a non-retaliative

reason for the termination. Summary judgment was appropriate. See Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (affirming summary

judgment where employee’s evidence was “not sufficiently probative that it would


                                          2
allow a reasonable factfinder to conclude either that the alleged reason for his

discharge was false, or that the true reason for his discharge was a discriminatory

one”). We therefore affirm.

      AFFIRMED.




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