                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 03 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID B. JONES,                                  No. 09-16873

              Plaintiff - Appellant,             D.C. No. 2:07-cv-07775-SMM

  v.                                             MEMORANDUM *

WAL-MART STORES EAST, LP; WAL-
MART STORES, INC.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                  Stephen M. McNamee, District Judge, Presiding

                     Argued and Submitted November 4, 2010
                            San Francisco, California

Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, District Judge.**


       Even assuming that Jones established a prima facie case of discrimination,

he has not raised a genuine issue of material fact that Wal-Mart’s explanation for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Benjamin H. Settle, Judge of the United States District
Court for the Western District of Washington, sitting by designation.
terminating him (namely, that he engaged in sexual harassment of several female

coworkers) was pretextual, and therefore cannot overcome Wal-Mart’s motion for

summary judgment. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 148 (2000); Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994).

Construing the facts in the light most favorable to Jones, Vasquez v. County of Los

Angeles, 349 F.3d 634, 639–40 (9th Cir. 2003), he did not offer any direct evidence

of discriminatory animus on the part of Wal-Mart. Nor did Jones offer any

“specific and substantial” indirect evidence that Wal-Mart’s proffered

nondiscriminatory reason for terminating him was a pretext to disguise a racially

discriminatory reason. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062

(9th Cir. 2002) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.

1998)).

      Jones’s allegations that Wal-Mart conducted an investigation of his alleged

wrongdoings that was more thorough than prior investigations, that Wal-Mart

failed to properly evaluate the evidence uncovered by the investigation, and that it

imposed harsher punishment on Jones than on other employees accused of sexual

harassment, do not create a genuine issue of material fact as to pretext. There is no

evidence that discredits Wal-Mart’s assertions that it terminated Jones because he

had engaged in sexual harassment. See Villiarimo, 281 F.3d at 1063.


                                          2
AFFIRMED.




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