                                                                           FILED
                            NOT FOR PUBLICATION                             APR 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANTHONY DIDIANA,                                 No. 10-17527

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01314-JCM-
                                                 PAL
  v.

PARBALL CORPORATION, a Nevada                    MEMORANDUM *
corporation,

              Defendant - Appellee.



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

                       Argued and Submitted March 26, 2012
                                 Tucson, Arizona

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Anthony DiDiana (“DiDiana”) appeals the district court’s grant of summary

judgment in favor of Parball Corporation (“Parball”). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      To prevail on his gender discrimination claim, DiDiana must either (1)

present direct or circumstantial evidence of discrimination, or (2) satisfy the

burden-shifting analysis described in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–04 (1973). To satisfy the burden shifting framework, DiDiana must

make a prima facie case either by (1) presenting direct evidence of discrimination,

or (2) presenting evidence satisfying each of four requirements described by our

previous gender discrimination cases. See, e.g., Hawn v. Exec. Jet Mgmt., Inc., 615

F.3d 1151, 1156 (9th Cir. 2010); Peterson v. Hewlett-Packard Co., 358 F.3d 599,

603 (9th Cir. 2004). DiDiana does not satisfy these requirements.

      DiDiana’s proffered evidence did not conclusively show an intent to

discriminate on the basis of gender. See Vasquez v. County of Los Angeles, 349

F.3d 634, 640 (9th Cir. 2003) (direct evidence must prove a fact without “inference

or presumption” (internal quotation marks omitted)). Nor did it satisfy the

four-prong test for a prima facie case, which required DiDiana to show that (1) he

belongs to a protected class; (2) he was performing to Parball’s legitimate

expectations; (3) he suffered an adverse employment action; and (4) similarly

situated employees outside the protected class were treated more favorably or the

circumstances gave rise to an inference of discrimination. Hawn, 615 F.3d at

1156. DiDiana did not satisfy this test because, even if cocktail servers were


                                           2
similarly situated employees, the evidence showed that a female employee actually

caught misappropriating funds was terminated. He also was not performing to

Parball’s legitimate expectations.

      Even if DiDiana could establish a prima facie case of gender discrimination,

Parball offered a nondiscriminatory reason for his termination, and DiDiana failed

to create a genuine issue of material fact regarding whether Parball’s proffered

reason was pretextual. McDonnell Douglas, 411 U.S. at 804. Because “at least

one other similarly situated employee . . . was treated in a similar manner as

[DiDiana],” that evidence negates “any showing of pretext” and therefore defeats

DiDiana’s claim. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th

Cir. 2001).

      We also affirm the grant of summary judgment in favor of Parball on

DiDiana’s age discrimination claim. To prevail on a claim for age discrimination,

DiDiana must prove at trial that age was the “but-for” cause of the employer’s

adverse action. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352 (2009).

DiDiana misappropriated company funds on more than one occasion; no

reasonable juror could find that this job performance was satisfactory and that age

not only compelled the adverse employment action, but was the but-for cause of

termination. Id.; see also Diaz v. Eagle Prod. Ltd. P’ship, 521 F.3d 1201, 1208


                                          3
(9th Cir. 2008). DiDiana’s evidence fails to clear this high hurdle, even when

evidence of Parball’s age-based proposal is considered in the light most favorable

to DiDiana. Therefore, the district court correctly concluded that DiDiana failed to

make a prima facie case for age discrimination.

      AFFIRMED.




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