John F. Kocienski v. Nrt Technologies, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN F. KOCIENSKI,
Plaintiff-Appellant,
v.
NRT TECHNOLOGIES, INC.,
Defendant-Appellee.
No. 18-15524
D.C. No.
2:16-cv-00905-JCM-CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 4, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
John Kocienski appeals the district court’s grant of summary judgment in
favor of NRT Technologies. We reverse and remand for further proceedings.
Because the parties are familiar with the factual and procedural history, we need
not recount it here.
FILED
DEC 11 2019
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.

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We review a district court’s grant of summary judgment de novo and uphold
a grant of summary judgment when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 269 (9th Cir. 1996).
When a plaintiff relies on both direct and circumstantial evidence under the Age
Discrimination in Employment Act, the court applies the three-stage burden-
shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973), which requires the plaintiff to make a prima facie showing of
discrimination. The burden then shifts to the employer to articulate a
nondiscriminatory explanation for the termination, and if the employer does this
then the plaintiff bears the burden of establishing pretext. Id. We consider the
cumulative effect of the direct and circumstantial evidence to determine whether
summary judgment is proper. See France v. Johnson, 795 F.3d 1170, 1175 (9th
Cir. 2015).
Because the parties concede that Kocienski has established a prima facie
case of age discrimination and that NRT proffered facially legitimate reasons for
his termination, only the third step in the McDonnell Douglas framework is at
issue here.
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Viewing the facts in the light most favorable to Kocienski, Bradley, 104
F.3d at 269, Kocienski has provided sufficient direct and circumstantial evidence
to create a genuine issue of material fact as to pretext. There were many remarks
alleged to have been made by company executives about Kocienski’s age during
his employment. Most importantly, Kocienski’s direct supervisor testified that the
president of NRT expressed a desire to fire Kocienski because he was “just too
old.” The fact that this alleged statement was presented through testimony from
someone other than the plaintiff “strengthens its value as direct evidence of
discriminatory intent.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115,
1128 n.13 (9th Cir. 2000). In short, because a “reasonable trier of fact [could]
conclude that discrimination had occurred” based on the particularities of the
incidents that Kocienski alleged, this evidence went beyond mere stray remarks.
Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1035, 1038 (9th Cir.
2005) (quotations and citation omitted).
Furthermore, NRT’s stated rationale for Kocienski’s termination was not
provided to him at the time he was fired. “[D]oubt is cast on an employer’s
proffered reasons for why an employee was laid off where a straightforward
answer was not given when he or she was terminated, but later is provided during
litigation.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th Cir. 2000).
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Kocienski also provided circumstantial evidence that NRT deviated from its
progressive discipline policy when it terminated him, which raises an issue of
triable fact at the pretext stage. See Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1117 (9th Cir. 2011).
Because there is a disputed question of fact as to which person hired
Kocienski, the “same actor” inference does not apply at the summary judgment
stage. See Bradley, 104 F.3d at 270–71.
In sum, the cumulative effect of the evidence tendered by Kocienski gives
rise to a material dispute of fact on the issue of pretext. Chuang, 225 F.3d at 1127.
Therefore, the entry of summary judgment was inappropriate.
REVERSED AND REMANDED.
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