                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 5 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL KIEFFER,                                No.    19-15893

                Plaintiff-Appellant,            D.C. No. 4:17-cv-00108-FRZ

 v.
                                                MEMORANDUM*
TRACTOR SUPPLY COMPANY, a
Delaware Corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Frank R. Zapata, District Judge, Presiding

                             Submitted June 2, 2020**
                               Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

      Michael Kieffer appeals the district court’s grant of summary judgment to

his former employer, Tractor Supply Company (“TSC”), on his sex discrimination

claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-



      *
             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).
17. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Kieffer sued TSC alleging that he was terminated because his manager

wanted to replace him with a woman. The district court correctly granted TSC

summary judgment because Kieffer failed to establish that he was subjected to

disparate treatment on account of his sex.

      “We review the district court’s grant of summary judgment de novo.”

Ridgeway v. Walmart, Inc., 946 F.3d 1066, 1077 (9th Cir. 2020) (citing Vasquez v.

Cty. of L.A., 349 F.3d 634, 639, as amended (Jan. 2, 2004)). We must “determine

whether, viewing the evidence in the light most favorable to the nonmoving party,

there are any genuine issues of material fact and whether the district court correctly

applied the relevant substantive law.” Mitchell v. Washington, 818 F.3d 436, 442–

43 (9th Cir. 2016) (quoting Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)

(en banc)).

      To prevail in his Title VII case, Kieffer must first “establish a prima facie

case of discrimination,” Vasquez, 349 F.3d at 640, by introducing sufficient

“evidence that ‘give[s] rise to an inference of unlawful discrimination,’” Reynaga

v. Roseburg Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017) (quoting Sischo–

Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991),

superseded on other grounds as recognized by Dominguez-Curry v. Nev. Transp.

Dep’t, 424 F.3d 1027, 1041 (9th Cir. 2005)). He can give rise to such an inference


                                          2
either “through direct or circumstantial evidence of discriminatory intent,”

Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1150 (9th Cir. 1997) (quoting

Sischo-Nownejad, 934 F.2d at 1111), or through the framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). He fails to do

so on either front.

         1. Kieffer first points to a declaration by his co-worker, Victorya Smith, as

“direct evidence” of discrimination. In her declaration, Smith claims overhearing

Kieffer’s former supervisor, Rob Hardy, confessing to another employee that he

planned to replace Kieffer in his Store Manager role with Assistant Store Manager

Susan Tefft because “Susan, being a woman, will do a lot of good for this

store.” Kieffer argues that this statement “can only mean” that gender motivated

Kieffer’s termination. But even if this purported conversation occurred as Smith

recounts, it is not direct evidence of discrimination because it requires us to infer a

discriminatory motive. See Vasquez, 349 F.3d at 640 (“Direct evidence is

‘evidence which, if believed, proves the fact [of discriminatory animus] without

inference or presumption.’” (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,

1221 (9th Cir. 1998))). In other words, that Hardy believed Tefft would do a lot of

good to the store because she is a woman says nothing about whether he fired

Kieffer because he is a man, unless we draw several inferences in Kieffer’s

favor.


                                            3
      2. Kieffer also alleges that Hardy schemed to replace him with Tefft

because Hardy had a “romantic” and “friendly and physical relationship” with

her. In other words, Kieffer argues that “Hardy favored his paramour, Susan

Tefft.” But Kieffer does not offer “direct evidence” that Tefft was Hardy’s

“paramour.” The only evidence of a purported sexual or romantic relationship

between Hardy and Tefft is, again, Kieffer’s and Smith’s self-serving

declarations. See generally Nigro v. Sears Roebuck & Co., 784 F.3d 495, 497 (9th

Cir. 2015) (holding that “a self-serving declaration does not always create a

genuine issue of material fact for summary judgment: The district court can

disregard a self-serving declaration that states only conclusions and not facts that

would be admissible evidence”). Even if we take these declarations as true, as we

must, at best they constitute circumstantial evidence that Tefft had a romantic

interest in Hardy. They do not show that Tefft and Hardy had a romantic or sexual

relationship that motivated Hardy to fire Kieffer to promote Tefft. Again, to find

that these declarations constitute “direct evidence” of discrimination would require

us to draw several inferences in Kieffer’s favor. Vasquez, 349 F.3d at 640.

      3. Having failed to adduce direct evidence to make out a prima facie case of

discrimination, Kieffer must proceed under the McDonnell Douglas

framework. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.

2002) (“[T]o show disparate treatment under Title VII [a plaintiff] . . . must show


                                          4
that (1) []he belongs to a protected class; (2) []he was qualified for the position; (3)

[]he was subjected to an adverse employment action; and (4) similarly situated

[wo]men were treated more favorably, or [his] position was filled by a [wo]man.”

(citing McDonnell Douglas, 411 U.S. at 802)).

      Here, Kieffer fails to raise a triable issue of material fact as to the second

and fourth factors of the McDonnell Douglas framework because the record

unequivocally establishes that Kieffer failed to perform his duties satisfactorily.

He consistently received negative ratings and failed to demonstrate any

improvement, violated company policy by instructing his staff to bring issues

directly to him rather than reporting them to Human Resources, and borrowed

company property for personal use without permission. Similarly, Kieffer offers

no evidence that female store managers with the same or similar poor ratings, who

violated company policy and borrowed company property without permission,

were not terminated. See Vasquez, 349 F.3d at 641 (“[I]ndividuals are similarly

situated when they have similar jobs and display similar conduct.”); Wall v. Nat’l

R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir. 1983) (affirming district court

where plaintiff did not show that he was treated less favorably than similarly

situated employees because other employees had no disciplinary record and were

thus not similarly situated). Accordingly, Kieffer also fails to make a prima facie

case of sex-based discrimination under the McDonnell Douglas test.


                                           5
AFFIRMED.




            6
