NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL KIEFFER, 

Plaintiff-Appellant, 

 v. 

TRACTOR SUPPLY COMPANY, a 

Delaware Corporation, 

Defendant-Appellee.

No. 19-15893 

D.C. No. 4:17-cv-00108-FRZ 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, District Judge, Presiding

Submitted June 2, 2020**

Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

Michael Kieffer appeals the district court’s grant of summary judgment to 

his former employer, Tractor Supply Company (“TSC”), on his sex discrimination 

claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-

* 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

JUN 5 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

17. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

Kieffer sued TSC alleging that he was terminated because his manager 

wanted to replace him with a woman. The district court correctly granted TSC 

summary judgment because Kieffer failed to establish that he was subjected to 

disparate treatment on account of his sex.

“We review the district court’s grant of summary judgment de novo.” 

Ridgeway v. Walmart, Inc., 946 F.3d 1066, 1077 (9th Cir. 2020) (citing Vasquez v. 

Cty. of L.A., 349 F.3d 634, 639, as amended (Jan. 2, 2004)). We must “determine 

whether, viewing the evidence in the light most favorable to the nonmoving party, 

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

applied the relevant substantive law.” Mitchell v. Washington, 818 F.3d 436, 442–

43 (9th Cir. 2016) (quoting Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) 

(en banc)). 

To prevail in his Title VII case, Kieffer must first “establish a prima facie 

case of discrimination,” Vasquez, 349 F.3d at 640, by introducing sufficient 

“evidence that ‘give[s] rise to an inference of unlawful discrimination,’” Reynaga 

v. Roseburg Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017) (quoting Sischo–

Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991), 

superseded on other grounds as recognized by Dominguez-Curry v. Nev. Transp.

Dep’t, 424 F.3d 1027, 1041 (9th Cir. 2005)). He can give rise to such an inference 
3 

either “through direct or circumstantial evidence of discriminatory intent,”

Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1150 (9th Cir. 1997) (quoting 

Sischo-Nownejad, 934 F.2d at 1111), or through the framework set forth in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). He fails to do 

so on either front. 

1. Kieffer first points to a declaration by his co-worker, Victorya Smith, as 

“direct evidence” of discrimination. In her declaration, Smith claims overhearing 

Kieffer’s former supervisor, Rob Hardy, confessing to another employee that he 

planned to replace Kieffer in his Store Manager role with Assistant Store Manager 

Susan Tefft because “Susan, being a woman, will do a lot of good for this 

store.” Kieffer argues that this statement “can only mean” that gender motivated 

Kieffer’s termination. But even if this purported conversation occurred as Smith 

recounts, it is not direct evidence of discrimination because it requires us to infer a 

discriminatory motive. See Vasquez, 349 F.3d at 640 (“Direct evidence is 

‘evidence which, if believed, proves the fact [of discriminatory animus] without 

inference or presumption.’” (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 

1221 (9th Cir. 1998))). In other words, that Hardy believed Tefft would do a lot of 

good to the store because she is a woman says nothing about whether he fired 

Kieffer because he is a man, unless we draw several inferences in Kieffer’s 

favor. 
4 

2. Kieffer also alleges that Hardy schemed to replace him with Tefft 

because Hardy had a “romantic” and “friendly and physical relationship” with 

her. In other words, Kieffer argues that “Hardy favored his paramour, Susan 

Tefft.” But Kieffer does not offer “direct evidence” that Tefft was Hardy’s 

“paramour.” The only evidence of a purported sexual or romantic relationship 

between Hardy and Tefft is, again, Kieffer’s and Smith’s self-serving 

declarations. See generally Nigro v. Sears Roebuck & Co., 784 F.3d 495, 497 (9th 

Cir. 2015) (holding that “a self-serving declaration does not always create a 

genuine issue of material fact for summary judgment: The district court can 

disregard a self-serving declaration that states only conclusions and not facts that 

would be admissible evidence”). Even if we take these declarations as true, as we 

must, at best they constitute circumstantial evidence that Tefft had a romantic 

interest in Hardy. They do not show that Tefft and Hardy had a romantic or sexual 

relationship that motivated Hardy to fire Kieffer to promote Tefft. Again, to find 

that these declarations constitute “direct evidence” of discrimination would require 

us to draw several inferences in Kieffer’s favor. Vasquez, 349 F.3d at 640.

3. Having failed to adduce direct evidence to make out a prima facie case of 

discrimination, Kieffer must proceed under the McDonnell Douglas 

framework. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 

2002) (“[T]o show disparate treatment under Title VII [a plaintiff] . . . must show 
5 

that (1) []he belongs to a protected class; (2) []he was qualified for the position; (3) 

[]he was subjected to an adverse employment action; and (4) similarly situated 

[wo]men were treated more favorably, or [his] position was filled by a [wo]man.” 

(citing McDonnell Douglas, 411 U.S. at 802)). 

Here, Kieffer fails to raise a triable issue of material fact as to the second 

and fourth factors of the McDonnell Douglas framework because the record 

unequivocally establishes that Kieffer failed to perform his duties satisfactorily. 

He consistently received negative ratings and failed to demonstrate any 

improvement, violated company policy by instructing his staff to bring issues 

directly to him rather than reporting them to Human Resources, and borrowed 

company property for personal use without permission. Similarly, Kieffer offers 

no evidence that female store managers with the same or similar poor ratings, who 

violated company policy and borrowed company property without permission, 

were not terminated. See Vasquez, 349 F.3d at 641 (“[I]ndividuals are similarly 

situated when they have similar jobs and display similar conduct.”); Wall v. Nat’l 

R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir. 1983) (affirming district court

where plaintiff did not show that he was treated less favorably than similarly 

situated employees because other employees had no disciplinary record and were 

thus not similarly situated). Accordingly, Kieffer also fails to make a prima facie 

case of sex-based discrimination under the McDonnell Douglas test.
6 

AFFIRMED.