                              NOT FOR PUBLICATION                        FILED
                       UNITED STATES COURT OF APPEALS                     JUN 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

                                                 No.   19-16369
WILLIAM CLARK,
                                                 D.C. No.
                   Plaintiff-Appellant,
                                                 2:18-cv-00392-APG-BNW
  v.
                                                 MEMORANDUM*
MIRAGE CASINO-HOTEL, INC.,

                   Defendant-Appellee.

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

                               Submitted June 11, 2020**
                               San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and RAYES,*** District
Judge.

       Plaintiff-Appellant William Clark accuses Defendant-Appellee Mirage

Casino-Hotel, Inc. (“Mirage”) of terminating his employment because of his age in


       *
             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 Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
violation of the Age Discrimination in Employment Act (ADEA) and its Nevada

state law counterpart.1 At summary judgment, the district court assumed that Clark

had established a prima facie case of age discrimination but concluded that Clark

had failed to show Mirage’s non-discriminatory reason for the termination was

pretextual. Clark appeals that determination. The parties are familiar with the

facts, so we do not recount them here. We have jurisdiction under 28 U.S.C. §

1291, and we review the district court’s grant of summary judgment de novo.

Vasquez v. Cty. of L.A., 349 F.3d 634, 639 (9th Cir. 2003). We affirm.

      ADEA claims are governed by the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Under this framework,

the employee must first establish a prima facie case of age discrimination.” Diaz

v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (emphasis

added). The burden then “shifts to the employer to articulate a legitimate, non-

discriminatory reason for its adverse employment action.” Id. “If the employer

does so, the plaintiff must show that the articulated reason is pretextual ‘either

directly by persuading the court that a discriminatory reason more likely motivated

the employer or indirectly by showing that the employer’s proffered explanation is



      1
        Clark also accused Mirage of subjecting him to a hostile work environment
because of his age. On this claim, the district court found no genuine issue of
material fact and concluded that Mirage was entitled to judgment as a matter of
law. Clark does not challenge this determination on appeal.

                                           2                                    19-16369
unworthy of credence.’” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d

1115, 1124 (9th Cir. 2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 (1981)). An employee’s evidence on this point “must be both

specific and substantial to overcome the legitimate reasons put forth by” the

employer. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th

Cir. 2002). This same framework applies to Nevada’s corresponding state law.

See Nev. Rev. Stat. § 613.330; Liston v. Las Vegas Metro. Police Dep’t, 908 P.2d

720, 721 n.2 (Nev. 1995).

      Assuming, as the district court did, that Clark can establish a prima facie

case of age discrimination, the district court properly granted summary judgment

because Mirage proffered a legitimate, non-discriminatory reason for terminating

Clark, which Clark failed to rebut with specific and substantial evidence.

Specifically, Mirage contends that it terminated Clark because he violated a

Workplace Violence Policy by threatening another employee. Clark presents no

direct evidence of pretext. He instead argues that Mirage’s proffered reason is not

worthy of credence because there are inconsistencies between the various witness

accounts of the incident, and because Mirage’s Workplace Violence Policy allows

for less drastic sanctions than termination, especially when considering Clark’s

overall positive work record and lack of disciplinary history. The minor semantic

differences between the witness accounts are immaterial, however, as all witnesses


                                         3                                      19-16369
reported that Clark made a violent threat, and even Clark admitted that his

comments probably were inappropriate. And although the Workplace Violence

Policy permits less drastic sanctions, there is no evidence that any Mirage

employee engaged in similar conduct yet retained his or her employment. Clark

therefore has not shown that Mirage’s reason for his termination is unworthy of

credence.

      At bottom, Clark questions whether Mirage made the right call. But we do

not second-guess Mirage’s business judgment. The question is not whether Mirage

made the right or wrong decision; it is whether Mirage terminated Clark for an

unlawful reason—his age. On this question, there is no genuine issue of material

fact and the district court properly granted summary judgment for Mirage. See

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000).

      AFFIRMED.




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