NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM CLARK,

Plaintiff-Appellant,

v.

MIRAGE CASINO-HOTEL, INC.,

 Defendant-Appellee.

No. 19-16369

D.C. No. 

2:18-cv-00392-APG-BNW

MEMORANDUM*

Appeal from the United States District Court for Nevada, Las Vegas

Andrew P. Gordon, District Judge, Presiding

Submitted June 11, 2020**

San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and RAYES,*** District 

Judge.

Plaintiff-Appellant William Clark accuses Defendant-Appellee Mirage 

Casino-Hotel, Inc. (“Mirage”) of terminating his employment because of his age in 

* 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 Douglas L. Rayes, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

JUN 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-16369 

violation of the Age Discrimination in Employment Act (ADEA) and its Nevada 

state law counterpart.1 At summary judgment, the district court assumed that Clark 

had established a prima facie case of age discrimination but concluded that Clark 

had failed to show Mirage’s non-discriminatory reason for the termination was 

pretextual. Clark appeals that determination. The parties are familiar with the 

facts, so we do not recount them here. We have jurisdiction under 28 U.S.C. § 

1291, and we review the district court’s grant of summary judgment de novo. 

Vasquez v. Cty. of L.A., 349 F.3d 634, 639 (9th Cir. 2003). We affirm.

ADEA claims are governed by the burden-shifting framework established in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Under this framework, 

the employee must first establish a prima facie case of age discrimination.” Diaz 

v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (emphasis 

added). The burden then “shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action.” Id. “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 

1 Clark also accused Mirage of subjecting him to a hostile work environment 

because of his age. On this claim, the district court found no genuine issue of 

material fact and concluded that Mirage was entitled to judgment as a matter of 

law. Clark does not challenge this determination on appeal.
3 19-16369 

unworthy of credence.’” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 

1115, 1124 (9th Cir. 2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 

U.S. 248, 256 (1981)). An employee’s evidence on this point “must be both 

specific and substantial to overcome the legitimate reasons put forth by” the 

employer. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th 

Cir. 2002). This same framework applies to Nevada’s corresponding state law. 

See Nev. Rev. Stat. § 613.330; Liston v. Las Vegas Metro. Police Dep’t, 908 P.2d 

720, 721 n.2 (Nev. 1995).

Assuming, as the district court did, that Clark can establish a prima facie

case of age discrimination, the district court properly granted summary judgment 

because Mirage proffered a legitimate, non-discriminatory reason for terminating 

Clark, which Clark failed to rebut with specific and substantial evidence. 

Specifically, Mirage contends that it terminated Clark because he violated a 

Workplace Violence Policy by threatening another employee. Clark presents no 

direct evidence of pretext. He instead argues that Mirage’s proffered reason is not 

worthy of credence because there are inconsistencies between the various witness 

accounts of the incident, and because Mirage’s Workplace Violence Policy allows

for less drastic sanctions than termination, especially when considering Clark’s 

overall positive work record and lack of disciplinary history. The minor semantic

differences between the witness accounts are immaterial, however, as all witnesses 
4 19-16369 

reported that Clark made a violent threat, and even Clark admitted that his 

comments probably were inappropriate. And although the Workplace Violence 

Policy permits less drastic sanctions, there is no evidence that any Mirage 

employee engaged in similar conduct yet retained his or her employment. Clark 

therefore has not shown that Mirage’s reason for his termination is unworthy of 

credence.

At bottom, Clark questions whether Mirage made the right call. But we do 

not second-guess Mirage’s business judgment. The question is not whether Mirage 

made the right or wrong decision; it is whether Mirage terminated Clark for an 

unlawful reason—his age. On this question, there is no genuine issue of material 

fact and the district court properly granted summary judgment for Mirage. See 

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000).

AFFIRMED.