                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HENRY TUKAY,                                     No.   16-15388

              Plaintiff-Appellant,               D.C. No. 3:14-cv-04343-JST

 v.
                                                 MEMORANDUM*
UNITED AIRLINES, INC.,

              Defendant-Appellee.


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

                            Submitted January 8, 2018**
                             San Francisco, California

Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.

      Plaintiff-Appellant Henry Tukay (Tukay) appeals from the district court’s

order granting summary judgment in favor of Defendant-Appellee United Airlines,

Inc. (United) on Tukay’s claims of discrimination, retaliation, and wrongful


      *
             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).
termination. United terminated Tukay after an internal investigation revealed that

Tukay had vandalized another employee’s vehicle. We review the district court’s

grant of summary judgment de novo, and we affirm. See Reynaga v. Roseburg

Forest Prods., 847 F.3d 678, 685 (9th Cir. 2017).

      Under the McDonnell Douglas1 burden-shifting framework, a complainant

bringing a disparate treatment action under Title VII must demonstrate a prima

facie case by “offer[ing] evidence that gives rise to an inference of unlawful

discrimination.” Id. at 690 (citation, alteration, and internal quotation marks

omitted). Such inference will arise when the plaintiff establishes four elements:

“(1) the plaintiff belongs to a protected class, (2) he was performing according to

his employer’s legitimate expectations, (3) he suffered an adverse employment

action, and (4) similarly situated employees were treated more favorably. . . .” Id.

at 691.

      Tukay failed to identify any similarly-situated employees enjoying more

favorable treatment, or other circumstances suggesting that racial discrimination

motivated United’s decision to terminate him. See Vasquez v. Cty. of Los Angeles,

349 F.3d 634, 641 (9th Cir. 2004), as amended (“[I]ndividuals are similarly

situated when they have similar jobs and display similar conduct. . . .”) (footnote


      1
          McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
                                           2
reference omitted). Although Tukay overheard a former supervisor make an

isolated discriminatory remark, Tukay’s failure to “show a nexus between [the]

discriminatory remark[] and [United’s] subsequent employment decisions” renders

this evidence insufficient to make the required showing for a prima facie case of

discrimination. Id. at 640 (footnote reference omitted).

      Similarly, Tukay has not demonstrated a prima facie case of unlawful

retaliation. To prevail on a claim for retaliation, Tukay must establish that he

engaged in a protected activity, United thereafter “subjected him to an adverse

employment action,” and a causal link existed between the protected activity and

the adverse employment action. Id. at 646 (footnote reference omitted). Although

Tukay properly identified his termination as an adverse employment action, his

failure to establish any causal link between his engagement in protected activity

and subsequent termination is fatal to his claim for relief. See id.

      Tukay’s wrongful termination claim—based on the same facts as his

discrimination and retaliation claims—necessarily fails. See Merrick v. Hilton

Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir. 2017).

      AFFIRMED.




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