Duane Hutchings v. ONE NEVADA CREDIT UNION, FKA Nevada Federal Credit Union

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUANE HUTCHINGS,
Plaintiff-Appellant,
and
BART STEPHENS,
Plaintiff,
v.
ONE NEVADA CREDIT UNION, FKA
Nevada Federal Credit Union,
Defendant-Appellee.
No. 16-16202
D.C. No.
2:13-cv-01712-JAD-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted October 20, 2017**
San Francisco, California
* 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).
FILED
OCT 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,*** District Judge.
Duane Hutchings was employed at One Nevada Credit Union selling
insurance. After One Nevada discovered Hutchings had a second job selling real
estate in violation of the company’s conflict of interest and outside employment
policies, it asked him to choose between the two jobs. Hutchings refused to stop
selling real estate, and One Nevada fired him.
In this suit, Hutchings alleges gender discrimination in violation of Title VII
of the Civil Rights Act of 1964 and Nev. Rev. Stat. § 613.330(1)(a), and a cause of
action for common law negligent infliction of emotional distress. The district court
granted One Nevada’s motion for summary judgment. We have jurisdiction of
Hutchings’ appeal under 28 U.S.C. § 1291 and affirm.
1. Hutchings argues that One Nevada discriminated against him by
terminating him for selling real estate, while a female employee with a real estate
license, Barbara Higgins, was not terminated. But, Hutchings provided no evidence
that Higgins sold real estate while employed at One Nevada; indeed, the only record
evidence is that she did not.1 By contrast, Hutchings actively sold real estate while
*** The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
1 Hutchings points to an internet printout listing Higgins’s real estate license as
active since 2009, but he does not respond to One Nevada’s argument that Hutchings

-- 2 of 3 --

3
employed at One Nevada. Because Hutchings failed to show that any similarly
situated female employees were treated more favorably than him, he failed to
establish a prima facie case of gender discrimination under either Title VII or Nevada
law. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (requiring
employees to “be similar in all material respects,” including “similar jobs” and
“similar conduct”); Apeceche v. White Pine Cty., 615 P.2d 975, 977 (Nev. 1980)
(applying same analysis to claims under Title VII and Nev. Rev. Stat.
§ 613.330(1)(a)).
2. Because Hutchings provided no “proof of serious emotional distress
causing physical injury or illness,” let alone any evidence of negligence by One
Nevada, the district court correctly granted summary judgment to One Nevada on
this claim. Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev. 2000).
AFFIRMED.
never properly authenticated this evidence. The district court properly found the
document inadmissible, and we likewise will not consider it on appeal. See Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

-- 3 of 3 --