NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

VINCENT FRIED,

Plaintiff-Appellant,

 v.

WYNN LAS VEGAS, LLC,

Defendant-Appellee.

No. 20-15710

D.C. No. 

2:18-cv-00689-APG-BNW

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Argued and Submitted May 5, 2021

Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and SILVER,

** District

Judge.

 

Vincent Fried appeals the district court’s order granting summary judgment

to Wynn Las Vegas, LLC, on his claims for sex discrimination, retaliation, and

hostile work environment. We review de novo. See Branch Banking & Tr. Co. v.

FILED

NOV 18 2021

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 Honorable Roslyn O. Silver, Senior United States District Judge

for the District of Arizona, sitting by designation.
D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We must determine whether

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

applied the relevant substantive law, viewing the evidence in the light most

favorable to Fried. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th

Cir. 2004). We may affirm on any ground supported by the record. Id. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s dismissal of

Fried’s claims for sex discrimination and retaliation pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

1, 2

1. The district court concluded that Fried established a prima facie case

of sex discrimination pursuant to Title VII. To establish a prima facie case of

discrimination, a plaintiff must prove that: (1) he belongs to a class of persons

protected by Title VII; (2) he performed his job satisfactorily; (3) he suffered an

adverse employment action; and (4) his employer treated him differently than a

similarly situated employee who does not belong to the same protected class as

him. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir.

2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

1

 The district court also granted summary judgment to Wynn on Fried’s

claim for hostile work environment. We reverse that decision in a concurrently

filed opinion.

2

 Because the parties are familiar with the facts, we recite only those

necessary to decide this appeal.

2
We assume without deciding that Fried satisfied the first three parts of the

four-part test, but he fails to raise a genuine dispute of fact as to the fourth part. 

“[E]mployees are similarly situated to the plaintiff when they ‘have similar jobs

and display similar conduct.’” Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,

1114 (9th Cir. 2011) (quoting Vasquez v. County of Los Angeles, 349 F.3d 634,

641 (9th Cir. 2003)). “The employees need not be identical, but must be similar in

material respects.” Id. “Materiality depends on the context and is a question of

fact that ‘cannot be mechanically resolved.’” Id. (quoting Hawn v. Exec. Jet

Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010)). The similarly situated inquiry

is “not an unyielding, inflexible requirement that requires near one-to-one mapping

between employees because one can always find distinctions in performance

histories or the nature of the alleged transgressions.” Id. at 1115 (internal

quotation marks omitted) (quoting Humphries v. CBOCS W., Inc., 474 F.3d 387,

405 (7th Cir. 2007)).

The proper comparator to Fried is the female salon attendant who, like him,

was fired for her role in serving alcohol to minors—not the female manicurists

who were not fired. This is the correct comparison because Wynn determined in

its investigation that Fried and the attendant knew Fried’s customer was under 21

years old yet the attendant served the customer champagne and Fried did not stop

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the customer from drinking it, despite having interacted with her multiple times. In

contrast, Fried did not raise a dispute of fact about whether any of the female

manicurists actually knew their customers were under 21 years old. This

difference between Fried and the female manicurists is material. See Vasquez, 349

F.3d at 641–42 (ruling that two employees with the same job were not similarly

situated because they “did not engage in problematic conduct of” the same

“comparable seriousness”). Because Fried did not show that Wynn treated him

differently than a similarly situated employee of the opposite sex, he did not

establish a prima facie case of sex discrimination.

Even if Fried had established a prima facie case of sex discrimination, his

sex-discrimination claim would fail. If a plaintiff establishes a prima facie case of

discrimination, “[t]he burden of production, but not persuasion, then shifts to the

employer to articulate some legitimate, nondiscriminatory reason for the

challenged action.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115,

1123–24 (9th Cir. 2000). “If the employer does so, the plaintiff must show that the

articulated reason is pretextual ‘either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of credence.’” Id. at 1124

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “In

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judging whether [an employer’s] proffered justifications [are] ‘false,’ it is not

important whether they were objectively false”; “courts only require that an

employer honestly believed its reasons for its actions, even if its reason is foolish

or trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

1063 (9th Cir. 2002) (internal quotation marks omitted) (quoting Johnson v.

Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)). A plaintiff may rely on

circumstantial evidence to show pretext, but “such evidence must be both specific

and substantial.” Id. at 1062.

Fried argues the evidence shows that Wynn’s explanation for firing him was

pretextual for three reasons. First, Fried asserts that Wynn’s explanation is

unworthy of credence because—despite surveillance footage showing him

interacting with his customer while she had a glass of champagne—he actually did

not know his customer was served champagne. But what Fried actually knew is

beside the point: he did not establish a disputed fact about whether Wynn honestly

believed Fried knew his customer was served champagne. See id. at 1063. 

Second, Fried asserts the fact that other female manicurists were not fired shows

pretext because they knew their customers had champagne and did not ask if they

were of age. But for the reasons discussed above, the female manicurists were not

similarly situated to Fried, and Fried did not point to evidence that could support a

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finding that Wynn honestly believed the female manicurists knew their customers

were underage. Last, Fried asserts that Wynn’s decision to fire him was illogical,

showing pretext, because he was the only manicurist who followed Wynn’s policy

of asking those who appear under 30 years old if they were of legal drinking age. 

Although Wynn’s decision might be unfair or illogical, this circumstantial

evidence is not by itself “substantial,” id. at 1062, and thus does not show that

Wynn’s explanation for firing Fried was pretextual.

2. To establish a prima facie case of retaliation, a plaintiff must prove

that: (1) he engaged in protected activity; (2) he suffered a materially adverse

employment action; and (3) a causal relationship existed between the two. 

Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir.

2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). 

“An employee engages in protected activity when [he] opposes an employment

practice that either violates Title VII or that the employee reasonably believes

violates that law.” Id.

“Title VII retaliation claims require proof that the desire to retaliate was the

but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 352 (2013). “That an employer’s actions were caused by an

employee’s engagement in protected activities may be inferred from ‘proximity in

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time between the protected action and the allegedly retaliatory employment

decision.’” Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (quoting

Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). “In addition, the

plaintiff must make some showing sufficient for a reasonable trier of fact to infer

that the defendant was aware that the plaintiff had engaged in protected activity.”

Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir.

2003).

Fried argues that Wynn fired him in retaliation for him reporting a male

customer’s sexual advances and that causation is shown because he was fired

fifteen days after his report. The district court did not err by rejecting this

argument. Fried ignores that the day after he reported the customer’s conduct, he

allowed an underage customer to consume alcohol in violation of Wynn’s policies. 

Thus, Fried failed to show there is a dispute of fact about whether Wynn’s “desire

to retaliate was the but-for cause” of his termination. Nassar, 570 U.S. at 352.

AFFIRMED.

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