David G. Contreras v. GEORGE L. MEE MEMORIAL HOSPITAL, AKA Mee Memorial Hospital

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID G. CONTRERAS,
Plaintiff-Appellant,
v.
GEORGE L. MEE MEMORIAL
HOSPITAL, AKA Mee Memorial Hospital,
Defendant-Appellee.
No. 17-16598
D.C. No. 5:15-cv-03963-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted December 20, 2018**
San Francisco, California
Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.
David G. Contreras appeals from the district court’s grant of summary
judgment in favor of George L. Mee Memorial Hospital as to Contreras’s claims
* 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
JAN 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for age discrimination under the Age Discrimination in Employment Act (ADEA),
29 U.S.C. §§ 621–34, and California’s Fair Employment and Housing Act
(FEHA), Cal. Gov’t Code §§ 12900–96. We have jurisdiction under 28 U.S.C.
§ 1291. Reviewing de novo, Southland Sod Farms v. Stover Seed Co., 108 F.3d
1134, 1138 (9th Cir. 1997), we affirm.
The district court properly held that the Hospital met its burden of
articulating a legitimate, nondiscriminatory reason for terminating Contreras’s
employment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Contreras failed to follow the Hospital’s protocol of securing patient valuables
during x-ray examinations despite receiving a final written warning notifying him
that failure to follow the protocol could result in the termination of his
employment.
The district court also properly concluded that Contreras did not “raise a
triable issue of material fact as to whether the [Hospital’s] proffered reason[] for”
terminating Contreras’s employment was “mere pretext for unlawful
discrimination.” See Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012) (quoting
Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010)). Contreras
argues that other employees did not always follow the protocol. But even if true,
this evidence does not demonstrate pretext because Contreras is not similarly
situated with these other employees. See Vasquez v. County of Los Angeles, 349

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F.3d 634, 641 (9th Cir. 2003) (stating that employees are “similarly situated when
they have similar jobs and display similar conduct”) (emphasis added). No other
employee was accused of theft, whereas Contreras’s patients accused him of theft
on four prior occasions. After the Hospital gave Contreras a final written warning
instructing him to follow the protocol, another one of Contreras’s patients
complained of theft. The Hospital conducted an investigation and concluded—and
Contreras admitted—that he did not follow the protocol.1
AFFIRMED.
1 We decline to address Contreras’s argument that the district court applied the
incorrect causation standard to his FEHA claim because Contreras invited the
purported error. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th
Cir. 1992) (“The doctrine of invited error prevents a [litigant] from complaining of
an error that was his own fault.”).

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