John Braaten v. Newmont USA Limited

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN BRAATEN,
Plaintiff-Appellant,
v.
NEWMONT USA LIMITED,
Defendant-Appellee.
No. 17-15394
D.C. No.
3:15-cv-00174-LRH-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 12, 2018**
San Francisco, California
Before: SCHROEDER and WATFORD, Circuit Judges, and ILLSTON,*** District
Judge.
FILED
FEB 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.

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The district court properly granted summary judgment to Newmont USA
Limited (Newmont) on John Braaten’s claim under the Age Discrimination in
Employment Act (ADEA).
1. The district court correctly held that Braaten failed to establish a prima
facie case of age discrimination. Because Braaten’s replacement was less than 10
years younger than Braaten, the age difference is “presumptively insubstantial.”
France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015). Braaten did not
overcome that presumption “by producing additional evidence to show that the
employer considered his . . . age to be significant.” Id. Instead, he admitted that
Newmont never discriminated against him before his termination; that no one
involved in his termination made any age-related comments; and that he did not
make an internal complaint of age discrimination during his termination, even
though he knew he could.
2. The district court also correctly held that Braaten failed to raise a triable
issue that Newmont’s reason for terminating him was “unworthy of credence” and
thus pretextual. Diaz v. Eagle Produce Limited Partnership, 521 F.3d 1201, 1212
(9th Cir. 2008) (citation omitted). Braaten’s violation of Newmont’s policy, which
required him to report his DUI charge to Newmont, is a valid, non-pretextual
reason for termination as long as Newmont “honestly believed” that reason.

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Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1063 (9th Cir. 2002) (citation
omitted). Braaten did not create a material dispute as to the sincerity of
Newmont’s belief about its reason for his termination. Newmont expressed
uncertainty as to whether it should give Braaten one reason for his termination
(violating the reporting policy) or multiple reasons (violating the reporting policy,
violating the short-term disability policy, and leaving work early). But having
multiple consistent reasons for termination does not suggest that any one of them is
pretextual. See Diaz, 521 F.3d at 1214.
Nor does Newmont’s commitment to “progressive” discipline cast doubt on
Newmont’s sincerity in terminating Braaten for one violation. Under the
progressive discipline policy, the severity of the discipline depends on the severity
of the violation, and Braaten did not identify anyone who violated the reporting
policy and was not terminated.
AFFIRMED.

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