                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS
                                                                            FILED
                              FOR THE NINTH CIRCUIT
                                                                            DEC 11 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JOHN F. KOCIENSKI,                                 No.   18-15524

              Plaintiff-Appellant,                 D.C. No.
                                                   2:16-cv-00905-JCM-CWH
 v.

NRT TECHNOLOGIES, INC.,                            MEMORANDUM*

              Defendant-Appellee.


                       Appeal from the United States District Court
                                for the District of Nevada
                        James C. Mahan, District Judge, Presiding

                        Argued and Submitted December 4, 2019
                               San Francisco, California

Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.

      John Kocienski appeals the district court’s grant of summary judgment in

favor of NRT Technologies. We reverse and remand for further proceedings.

Because the parties are familiar with the factual and procedural history, we need

not recount it here.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review a district court’s grant of summary judgment de novo and uphold

a grant of summary judgment when there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a); Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 269 (9th Cir. 1996).

When a plaintiff relies on both direct and circumstantial evidence under the Age

Discrimination in Employment Act, the court applies the three-stage burden-

shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–04 (1973), which requires the plaintiff to make a prima facie showing of

discrimination. The burden then shifts to the employer to articulate a

nondiscriminatory explanation for the termination, and if the employer does this

then the plaintiff bears the burden of establishing pretext. Id. We consider the

cumulative effect of the direct and circumstantial evidence to determine whether

summary judgment is proper. See France v. Johnson, 795 F.3d 1170, 1175 (9th

Cir. 2015).

      Because the parties concede that Kocienski has established a prima facie

case of age discrimination and that NRT proffered facially legitimate reasons for

his termination, only the third step in the McDonnell Douglas framework is at

issue here.




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      Viewing the facts in the light most favorable to Kocienski, Bradley, 104

F.3d at 269, Kocienski has provided sufficient direct and circumstantial evidence

to create a genuine issue of material fact as to pretext. There were many remarks

alleged to have been made by company executives about Kocienski’s age during

his employment. Most importantly, Kocienski’s direct supervisor testified that the

president of NRT expressed a desire to fire Kocienski because he was “just too

old.” The fact that this alleged statement was presented through testimony from

someone other than the plaintiff “strengthens its value as direct evidence of

discriminatory intent.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115,

1128 n.13 (9th Cir. 2000). In short, because a “reasonable trier of fact [could]

conclude that discrimination had occurred” based on the particularities of the

incidents that Kocienski alleged, this evidence went beyond mere stray remarks.

Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1035, 1038 (9th Cir.

2005) (quotations and citation omitted).

      Furthermore, NRT’s stated rationale for Kocienski’s termination was not

provided to him at the time he was fired. “[D]oubt is cast on an employer’s

proffered reasons for why an employee was laid off where a straightforward

answer was not given when he or she was terminated, but later is provided during

litigation.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th Cir. 2000).


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Kocienski also provided circumstantial evidence that NRT deviated from its

progressive discipline policy when it terminated him, which raises an issue of

triable fact at the pretext stage. See Earl v. Nielsen Media Research, Inc., 658 F.3d

1108, 1117 (9th Cir. 2011).

      Because there is a disputed question of fact as to which person hired

Kocienski, the “same actor” inference does not apply at the summary judgment

stage. See Bradley, 104 F.3d at 270–71.

      In sum, the cumulative effect of the evidence tendered by Kocienski gives

rise to a material dispute of fact on the issue of pretext. Chuang, 225 F.3d at 1127.

Therefore, the entry of summary judgment was inappropriate.

      REVERSED AND REMANDED.




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