                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVEN INGRAM, an individual,                   No.    15-16069

                Plaintiff-Appellant,            D.C. No. 3:12-cv-02777-JST

 v.
                                                MEMORANDUM *
PACIFIC GAS & ELECTRIC COMPANY
and PG&E CORPORATION,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                       Argued and Submitted April 17, 2017
                            San Francisco, California

Before: FERNANDEZ and MURGUIA, Circuit Judges, and CURIEL,** District
Judge.

      Plaintiff-appellant Steven Ingram (“Ingram”) appeals the district court’s

order granting summary judgment in favor of defendants-appellees Pacific Gas &

Electric Company and PG&E Corporation (“PG&E”). Ingram, an African


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
American electrician and former PG&E employee, alleged that PG&E terminated

his employment because of his race, in violation Title VII of the Civil Rights Act

of 1964. Title VII makes it unlawful for an employer “to discharge any individual,

or otherwise to discriminate against any individual . . . because of such individual’s

race.” 42 U.S.C. § 2000e-2(a)(1). The district court concluded that Ingram failed

to establish a prima facie case of racial discrimination because Ingram provided

insufficient evidence that he had performed his job duties satisfactorily and that

similarly situated non-African Americans were treated more favorably. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1

      1. We review a district court’s grant of summary judgment de novo. Sierra

Club v. BLM, 786 F.3d 1219, 1223 (9th Cir. 2015). Title VII race discrimination

claims are analyzed under the three-step framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under step one of the McDonnell

Douglas framework, Ingram bears the burden of proving a prima facie case of race

discrimination. Id. at 802. To establish a prima facie case of race discrimination,

Ingram must offer proof that (1) he belongs to a protected class; (2) he performed

his job duties satisfactorily; (3) he was subjected to an adverse employment action;

and (4) similarly situated individuals who do not belong to the same protected class



      1
            Ingram’s motion to file documents under seal is granted. The
documents, as described by Ingram, have no bearing on the outcome of this case.

                                          2
were treated more favorably than he was. Cornwell v. Electra Cent. Credit Union,

439 F.3d 1018, 1028 (9th Cir. 2006). “The requisite degree of proof necessary to

establish a prima facie case for Title VII . . . on summary judgment is minimal and

does not even need to rise to the level of a preponderance of the evidence.”

Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002)

(quotation omitted).

      We conclude that Ingram failed to meet his burden of providing minimal

evidence that he was performing his job satisfactorily.2 The evidence demonstrates

that Ingram, over the course of several years, committed multiple switching errors

that caused significant power outages; violated PG&E’s driving policy by failing to

promptly report changes in his driver’s license status to his supervisor, including

after he was arrested for driving under the influence; and drove a company vehicle

after he had learned that his license was expired and suspended. On May 17, 2011,

Ingram again drove a company vehicle after being specifically directed to not drive

any company vehicles. That same day, Ingram committed another significant

switching error. The error caused an alarm to trip and a distribution operator

immediately called Ingram, who informed the operator that he would investigate


      2
             The district court appeared to apply a “substantial evidence” standard
at the prima facie stage. But Ingram need only provide “minimal” evidence at the
prima facie stage. Aragon, 292 F.3d at 659. Though the district court may have
conflated the two standards, we conclude that summary judgment was appropriate
even under the proper minimal evidence standard.

                                          3
and call him back. Rather than calling back, Ingram opened a switch without first

obtaining approval, which caused a power outage and damaged Ingram’s eyes and

PG&E’s equipment. On this record, we find that no reasonable jury could

conclude that Ingram performed his job duties satisfactorily. See Cornwell, 439

F.3d at 1028.

      Moreover, Ingram has failed to identify a similarly situated non-African

American employee who was treated more favorably. Id. “In order to show that

the employees allegedly receiving more favorable treatment are similarly

situated . . ., the individuals seeking relief must demonstrate, at the least, that they

are similarly situated to those employees in all material respects.” Moran v. Selig,

447 F.3d 748, 755 (9th Cir. 2006) (quotation marks omitted). PG&E identified

two reasons for Ingram’s termination: the May 17 switching error and the fact that

Ingram continued to drive without a valid license even after he was directed not to.

Ingram must therefore identify an individual who suffers from a similar

disciplinary history. Id. Though Ingram can identify individuals with a relatively

similar history of switching errors or with a relatively similar history of driving

violations, he is unable to identify an individual who shares the combination of his

switching errors and driving violations. No reasonable jury could conclude that

Ingram identified a similarly situated non-African American who was treated more

favorably than Ingram. See Cornwell, 439 F.3d at 1028.


                                            4
      2. Ingram argues that the district court erred by denying his request for an

adverse inference instruction. A district court’s refusal to give an adverse

inference instruction is reviewed for abuse of discretion. United States v. Fries,

781 F.3d 1137, 1146 (9th Cir. 2015). Since adverse inference instructions are

provided to juries at the conclusion of a trial, the district court did not abuse its

discretion by denying Ingram’s request for an adverse inference at the summary

judgment stage of these proceedings. Id. at 1152.

      AFFIRMED.




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