                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

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




                             FOR THE NINTH CIRCUIT



MARCUS NELSON,                                   No. 09-35278

               Plaintiff-Appellant,
                                                 DC No. 07 CV-1757 MJP
  v.

QUALITY FOOD CENTERS, INC., et al.

               Defendants-Appellees.             MEMORANDUM *




                     Appeal from the United States District Court
                          Western District of Washington
                     Marsha J. Pechman, District Judge, Presiding

                       Argued and Submitted January 15, 2010
                                Seattle, Washington

Before:        TASHIMA and TALLMAN, Circuit Judges, and MARSHALL **
               District Judge.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

          ** The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
       Appellant Marcus Nelson (“Nelson”) appeals the district court’s grant of

summary judgment and denial of his motion for reconsideration of his claims

against Appellees Quality Food Centers, Inc. (“QFC”), and Robert Callahan

(“Callahan”), for violations of: (1) the civil rights act of 1866, 42 U.S.C.§ 1981; (2)

the civil rights act of 1964, 42 U.S.C. § 2000e et seq.; and (3) discrimination

pursuant to Washington state law, Wash. Rev. Code § 49.60, on the ground that

Nelson failed to meet his burden pursuant to McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). For the reasons stated below, this Court AFFIRMS the

district court.

       Nelson alleges he was the victim of employment discrimination in violation

of federal and state law. Title VII makes it unlawful for an employer to

“discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race . . . .”

42 U.S.C. § 2000e-2(a)(1).

       The parties agree that McDonnell Douglas, 411 U.S. 792, governs Nelson’s

claims. Under this framework, the plaintiff has the initial burden of establishing

his prima facie case of discrimination. Accordingly, a plaintiff alleging

employment discrimination must first offer proof that: (1) he belongs to a protected

class; (2) he performed his job satisfactorily; (3) he suffered an adverse


                                          -2-
employment action, such as demotion; and (4) a similarly situated employee who

does not belong to the protected class was treated more favorably. Id. at 802; see

also Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105-06 (9th Cir. 2008).

      Here, we conclude that Nelson fails to meet his initial burden of establishing

a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.

Nelson does not offer evidence from which a reasonable juror could conclude he

was performing satisfactorily or that similarly situated individuals 1 not in the

protected class were treated more favorably than he was. To the contrary, the

record shows that Nelson received substandard reviews from two different district

managers for Fiscal Years (“FYs”) 2004 and 2005, and was ranked amongst the

worst managers in his district for FY 2004. Although the record shows that Nelson

excelled in customer service, it also shows that he performed poorly in “objective”

criteria such as sales, shrink, inventory, and that he consistently missed “objective”

goals such as budget and sales targets. Accordingly, the district court properly

found that, based on the evidence, no reasonable juror could have found that

Nelson was a satisfactory store manager.




       1
       Neither party disputes that Nelson belongs to a protected class and was
demoted.

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      Similarly, no reasonable juror could conclude based on the evidence before

this Court that similarly situated individuals not in the protected class were treated

more favorably than Nelson. Nelson’s argument that Rod Skorlud, the Caucasian

manager of Silver Lake who was transferred to West Lynnwood, was a similarly

situated individual who was treated better is rebutted by evidence that Skorlud

received higher performance reviews in both FY 2004 and FY 2005 by the same

two individuals who reviewed Nelson. Compare ER 238-243, 259-265 to ER 251-

256, 267-273. Based on the evidence, no reasonable juror could find that Nelson

was either outperforming Skolrud or that the two men were similarly situated. See

Surrell, 518 F.3d at 1105-06.

      We agree with the district court that Nelson “utilize[s] comparators that [are

not] truly ‘similarly situated.’” The evidence demonstrates that other store

managers who received low performance reviews for FY 2004 were removed from

their store manager positions well before Nelson was transferred to Silver Lake.

The evidence also shows that Karen Peterson, a Caucasian female, was, like

Nelson, transferred to another store following a substandard performance review,

and then demoted when that store closed. These individuals, not Skorlud, are

“similarly situated” to Nelson and were not treated more favorably than Nelson.

See id.


                                          -4-
      Based on the foregoing, we conclude Nelson fails to meet his initial burden

of establishing his prima facie case. Accordingly, summary judgment for QFC and

Callahan was proper and the district court did not abuse its discretion in denying

the motion for reconsideration.

      AFFIRMED.




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