Michael O’connor v. Cymer, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL O’CONNOR,
Plaintiff-Appellant,
v.
CYMER, LLC,
Defendant-Appellee.
No. 18-35685
D.C. No.
1:16-cv-00532-DCN
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Argued and Submitted June 7, 2019
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,** District
Judge.
Michael O’Connor appeals a summary judgment in favor of Cymer, LLC
(“Cymer”) on his claim of age discrimination under the Age Discrimination in
Employment Act (“ADEA”), 28 U.S.C. § 623, and the Idaho Human Rights
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
FILED
JUL 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Act, Idaho Code § 67–5901. We have jurisdiction pursuant to 28 U.S.C. § 1291,
vacate the summary judgment, and remand to the district court.
1. Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), burden-shifting framework, an employee must first establish a prima facie
case of age discrimination. If the employee establishes a prima facie case, the
burden shifts to the employer to articulate a legitimate, non-discriminatory reason
for its adverse employment action. If the employer satisfies its burden, the
employee must show that the reason advanced by the employer was pretext for the
unlawful discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th
Cir. 2000). A plaintiff establishes a prima facie case of age discrimination by
showing “that he was (1) at least forty years old, (2) performing his job
satisfactorily, (3) discharged, and (4) either replaced by substantially younger
employees with equal or inferior qualifications or discharged under circumstances
otherwise ‘giving rise to an inference of age discrimination.’” Diaz v. Eagle
Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Coleman, 232
F.3d at 1281). Although a “plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of discrimination,” the Supreme
Court has stated that “[t]he burden of establishing a prima facie case of disparate
treatment is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
252-53 (1981).

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2. There is no dispute that O’Connor was over forty and was terminated.
And, the district court found that there were disputed issues of fact regarding
O’Connor’s job performance. O’Connor was replaced by an individual eight years
younger. Thus, the critical issue is whether O’Connor presented evidence that he
was discharged under circumstances giving rise to an inference of age
discrimination. The district court found that he did not, and therefore did not
analyze the remaining prongs of the McDonnell Douglas test.
3. The district court erred in not doing so. O’Connor offered statements by
his supervisor related to his age, salary and tenure and evidence that the supervisor
called younger employees “supermen.” Considering the low burden sufficient to
establish a prima facie case, a reasonable factfinder could determine the evidence
shows that O’Connor was “discharged under circumstances otherwise ‘giving rise
to an inference of age discrimination.’” Diaz, 521 F.3d at 1207. We vacate the
grant of summary judgment and remand to the district court to allow analysis of
the remaining prongs of the McDonnell Douglas test.
VACATED and REMANDED.

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