NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY MITCHELL, an individual,

Plaintiff

- Appellant,

v.

KEVIN K. MCALEENAN,

Defendant

- Appellee. No. 18

- 55763

D.C. No.

2:16

- cv

- 07695

- PA

- MRW

MEMORANDUM *

Appeal from the United States District Court

for the Central District of California Percy Anderson, District Judge, Presiding

Submitted November 4, 2019 **
Pasadena, California

Before: FARRIS, McKEOWN, and PARKER, *** Circuit Judges.

Anthony Mitchell (“Mitchell”) alleged that the Transportation Security

Administration (“TSA”) removed him as a Transportation Safety Officer (“TSO”)

* 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 Barrington D. Parker, Jr ., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 

# FILED

NOV 8 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

based on race, sex, color, and age

, in violation of Title VII of the Civil Righ ts Act

of 1964 (“Title VII”) , 42 U.S.C. § § 2000e et seq.

, and the Age Discrimination in

Employment Act (“ADEA”) , 29 U.S.C. § § 621 et seq. . The parties are familiar

with the facts so we do not repeat them. Mitchell appeals the district court’s

summary jud gment to the TSA. W e affirm.

Mitchell cannot establish a prima facie case under Title VII . He is not

similarly situated in “all material respects” to the p urported comparators

. Moran v.

Selig , 447 F.3d 748, 755 (9th Cir. 2006). Unlike Mitchell, o ne of the purported

comparator s competed for and received a different position within the TSA with

markedly different essential duties. The remaining comparators presented medical

records without indication of permanent restriction , obtained un qualified release to

full duty , or had both.

In contrast, t he physician appointed by the Department of Labor concluded

that Mitchell will have “permanent restriction” in the use of his left extremities.

Several months later, t h e same physician confirmed the unfortunate prognosis

.

Mitchell’s treating physician also observ ed persistent pain and severe limitations in

the left extremities.

The treating physician’s release to “regular work with no restrictions” does

not create a genuine issue of material fact. Mitchell ’s release was issued “per

[patient’s] request,” b ased on what he wanted

. N o medical test or observable3

improvement supported the release

. The qualified rel ease obtained at Mitchell’s

insistence does not establish that Mitchell is similarly situated to the purported

comparators. See Weil v. Citizen Telecom Servs

. Co

. , LLC , 922 F.3d 993, 1004

(9th Cir. 2019) (similarly situated employees “display similar cond uct” ).

Nor can Mitchell establish a prima facie case of discrimination under the

ADEA . H e did not offer evidence showing that th e younger employees who

alleg edly replaced him possessed equal or less er qualifications

, or evidence

supporting “an inference of age discrimination

. ” See Diaz v. Eagle Produce Ltd.

P’ship , 521 F.3d 1201, 1207 (9th Cir. 2008).

T he TS A “clearly set forth” a “legitimate, nondiscriminatory reason” for the

removal

. Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 25 4, 257 (1981). It

considered the medical document s, then decid ed to remove Mitchel l “based solely

on [his] physical inability to perform the full range of [TSO] duties.” Even if a

prima facie case can be established , th is “individualized” explanation bas ed on

“concerns about job performance unrelated to [Mitchell ’s] protected status” would

be sufficient to rebut it. Diaz , 521 F.3d at 1212.

Finally, Mitchell did not offer “ specific and substantial evidence” that the

TS A ’s reason for the removal was a pretext for discrimination. Aragon v. Republic

Silver State Disposal Inc. , 292 F.3d 654, 661 (9th Cir. 2002). T he TS A showed

that it “ honestly believed ” its proffered reason

. See Villiarimo v. Aloha Island Air,4

Inc. , 281 F.3d 1054, 1063 (9th Cir. 2002). A TSA h uman r esources s pecialist

obtained confirmation from the treating physician that Mitchell was unable to

perform the essential duties of a TSO

.

AFFIRMED.