                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL O’CONNOR,                               No.    18-35685

                Plaintiff-Appellant,            D.C. No.
                                                1:16-cv-00532-DCN
 v.

CYMER, LLC,                                     MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Idaho
                     David C. Nye, District Judge, Presiding

                        Argued and Submitted June 7, 2019
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,** District
Judge.

      Michael O’Connor appeals a summary judgment in favor of Cymer, LLC

(“Cymer”) on his claim of age discrimination under the Age Discrimination in

Employment Act (“ADEA”), 28 U.S.C. § 623, and the Idaho Human Rights



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
Act, Idaho Code § 67–5901. We have jurisdiction pursuant to 28 U.S.C. § 1291,

vacate the summary judgment, and remand to the district court.

      1. Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

(1973), burden-shifting framework, an employee must first establish a prima facie

case of age discrimination. If the employee establishes a prima facie case, the

burden shifts to the employer to articulate a legitimate, non-discriminatory reason

for its adverse employment action. If the employer satisfies its burden, the

employee must show that the reason advanced by the employer was pretext for the

unlawful discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th

Cir. 2000). A plaintiff establishes a prima facie case of age discrimination by

showing “that he was (1) at least forty years old, (2) performing his job

satisfactorily, (3) discharged, and (4) either replaced by substantially younger

employees with equal or inferior qualifications or discharged under circumstances

otherwise ‘giving rise to an inference of age discrimination.’” Diaz v. Eagle

Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Coleman, 232

F.3d at 1281). Although a “plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of discrimination,” the Supreme

Court has stated that “[t]he burden of establishing a prima facie case of disparate

treatment is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

252-53 (1981).

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      2. There is no dispute that O’Connor was over forty and was terminated.

And, the district court found that there were disputed issues of fact regarding

O’Connor’s job performance. O’Connor was replaced by an individual eight years

younger. Thus, the critical issue is whether O’Connor presented evidence that he

was discharged under circumstances giving rise to an inference of age

discrimination. The district court found that he did not, and therefore did not

analyze the remaining prongs of the McDonnell Douglas test.

      3. The district court erred in not doing so. O’Connor offered statements by

his supervisor related to his age, salary and tenure and evidence that the supervisor

called younger employees “supermen.” Considering the low burden sufficient to

establish a prima facie case, a reasonable factfinder could determine the evidence

shows that O’Connor was “discharged under circumstances otherwise ‘giving rise

to an inference of age discrimination.’” Diaz, 521 F.3d at 1207. We vacate the

grant of summary judgment and remand to the district court to allow analysis of

the remaining prongs of the McDonnell Douglas test.

VACATED and REMANDED.




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