                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             AUG 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANDREW GUYTON,                                   No.   16-55080

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-00009-MMM-AGR
 v.

NOVO NORDISK A/S,                                MEMORANDUM*

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                       Argued and Submitted August 8, 2017
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.

      Guyton appeals the district court’s grant of summary judgment to Novo

Nordisk in his diversity suit for employment discrimination and retaliation under

California’s Fair Employment and Housing Act. His suit arises out of three adverse

employment actions: one denial of a promotion and two denials of transfers. We



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
affirm the district court’s order because Guyton has failed to establish a triable

issue of fact as to pretext on any of his claims.

      Where, as here, the plaintiff makes out a prima facie case of discrimination

and the employer offers a legitimate—nondiscriminatory and

nonretaliatory—reason for the employment decision, the question at summary

judgment is whether the plaintiff has presented sufficient facts to raise a triable

issue of fact as to the employer’s proffered reason being a mere pretext for

discriminatory or retaliatory treatment. Chuang v. Univ. of Cal. Bd. of Trustees,

225 F.3d 1115, 1126 (9th Cir. 2000).

      A plaintiff can show pretext either directly or, as Guyton attempts to do here,

indirectly, “by showing that the employer’s proffered explanation is ‘unworthy of

credence’ because it is internally inconsistent or otherwise not believable.” Id. at

1127. Raising a triable issue of pretext using indirect evidence requires “‘specific’

and ‘substantial’ facts,” but “[t]hat standard is ‘tempered’ by our observation that a

plaintiff’s burden to raise a triable issue of pretext is ‘hardly an onerous one.’” Earl

v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (quoting

Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007)). Guyton offers a

variety of arguments for why there is a triable issue of fact as to pretext for each of

the challenged employment actions. All of his arguments fail.


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      1. We first consider the promotion Guyton applied for and did not receive.

Guyton argues that pretext could be found based on an alleged statement by a

supervisor that she interfered with the promotion process. However, that statement

does not tend to show that the employer’s explanation—that Guyton did not

receive the promotion because of concerns about his skills and the quality of his

interview—is “unworthy of credence.” Chuang, 225 F.3d at 1127.

      2. We next turn to the first requested transfer, in December 2012. According

to Novo Nordisk, the transfer request was denied because Guyton was subject to a

disciplinary Action Plan at the time. Guyton acknowledges that the transfer request

was denied because of the Action Plan, but argues that he was placed on the Action

Plan for discriminatory or retaliatory reasons as evidenced by the fact that he was

previously not disciplined for his past noncompliance with the same rules. He also

points to a positive performance review several months earlier. Contrary to

Guyton’s claims, the implementation of the Action Plan was consistent with

progressive discipline as Guyton’s noncompliance continued and worsened, and

thus Guyton’s assertions do not raise a genuine issue of fact as to pretext.

      Guyton also argues that the Action Plan was pretextual because other

employees who violated policies were not disciplined. However, the only examples

Guyton is able to identify involve either isolated incidents or violations of law or


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formal company policy that may have actually helped the company. None involved

repeated violations of the same policy notwithstanding counseling. Therefore,

Guyton has failed to show that individuals who engaged in “similar conduct” and

were similarly persistent in that conduct were treated differently. See Vasquez v.

Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). The alleged disparate

discipline therefore does not raise a triable issue of fact as to pretext.

      3. Finally, we consider the second requested transfer, in March 2013.

According to Novo Nordisk, this transfer request was denied because Guyton was

on or about to be placed on a disciplinary Performance Improvement Plan. Guyton

argues that the explanation is pretextual because he was not on the plan until May

2013. However, while Guyton claimed that he requested the transfer in March

2013, he acknowledged that the discussion about the Plan that resulted in the

denial of the transfer did not occur until May 2013, after Guyton’s compliance

with logging requirements again deteriorated. Therefore, any factual dispute about

when the transfer was requested does not raise a triable issue of fact regarding the

reasons for the subsequent denial of the transfer. Guyton also argues that the Plan

was pretextual based on the evidence discussed above with respect to the Action

Plan; those arguments fail for the same reasons.




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      Accordingly, Guyton failed to present sufficient evidence of pretext to raise

a triable issue of fact as to any of the disputed employment actions.

      AFFIRMED.




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