                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 7 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GAYLE MCCOY,                                    No.    16-16945

                Plaintiff-Appellant,            D.C. No.
                                                3:15-cv-00188-LRH-WGC
 v.

BARRICK GOLD OF NORTH AMERICA,                  MEMORANDUM*
INC.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                          Submitted December 5, 2017**
                            San Francisco, California

Before: KOZINSKI and HURWITZ, Circuit Judges, and KEELEY,*** District
Judge.

      1.     McCoy argues that the district court improperly collapsed the burden-


      *
             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).
      ***
             The Honorable Irene M. Keeley, United States District Judge for the
U.S. District Court for the Northern District of West Virginia, sitting by
designation.
shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). But under any analytical framework, McCoy had the burden of providing

some evidence that Barrick’s proffered reason for his termination—poor job

performance—was pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 143 (2000) (“[T]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff.”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981)).

      The district court properly concluded that McCoy failed to “raise a genuine

factual question as to whether the proffered reason is pretextual.” Shelley v. Geren,

666 F.3d 599, 609 (9th Cir. 2012). A single favorable performance review was

insufficient to create a triable issue on pretext in light of McCoy’s numerous

undisputed safety violations. Replacement by a younger employee is part of a prima

facie case of discrimination, but does not show pretext. See Coleman v. Quaker Oats

Co., 232 F.3d 1271, 1281–82 (9th Cir. 2000). Asking an employee who is eligible

for retirement and performing unsatisfactorily about retirement does not give rise to

an inference of age discrimination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890

(9th Cir. 1994) (“[A] plaintiff cannot defeat summary judgment simply by making

out a prima facie case”) (citation and quotation marks omitted).

      2.     Any claimed error from the district court’s application of the “same-


                                         2
actor inference” was harmless. The inference was immaterial because McCoy failed

to show that his age caused his termination.

       3.      The only evidence McCoy provided to support his claim that he was

fired for claiming worker’s compensation was that he was terminated eleven months

after an October 2013 accident. The district court correctly concluded the temporal

proximity of the two events was not sufficient to give rise to an inference of

retaliation.

       AFFIRMED.




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