FILED

NOT FOR PUBLICATION

NOV 16 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS KNICKMEYER, No. 16-15740

Plaintiff-Appellant, D.C. No. 2:14-cv-00231-JCM-PAL v.

STATE OF NEVADA ex rel. EIGHTH MEMORANDUM*

JUDICIAL DISTRICT COURT,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted October 12, 2017** San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,*** District Judge.

* 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 Matthew Frederick Leitman, United States District Judge for the Eastern District of Michigan, sitting by designation. Appellant Thomas Knickmeyer (“Knickmeyer”) worked as a marshal for the

Eighth Judicial District Court in Clark County, Nevada (the “EJDC”). During

2012 and 2013, the EJDC received a number of complaints alleging that

Knickmeyer had committed misconduct. The alleged misbehavior included

misogynistic comments, inappropriately touching prisoners, disparaging his

supervisors, and falling asleep during a calendar call. The EJDC investigated the

complaints, found them to have merit, and terminated Knickmeyer’s employment

in November 2013.

Knickmeyer thereafter filed this civil action against the State of Nevada (the

“State”) challenging his working conditions and his termination as violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He alleged,

among other things, that his supervisor subjected him to a racially hostile

workplace environment and that he was terminated in retaliation for reporting

racial discrimination internally and to the Nevada Equal Rights Commission (the

“NERC”).

The district court granted summary judgment in favor of the State on both of

Knickmeyer’s Title VII claims.1 The district court held that Knickmeyer’s hostile

1 Knickmeyer does not pursue on appeal his claim that his termination was in direct violation of Title VII. 2 work environment claim failed because Knickmeyer did not present sufficient

evidence that he was subjected to severe or pervasive race-based harassment. The

court also held that Knickmeyer’s retaliatory discharge claim failed because

Knickmeyer did not present sufficient evidence that his protected activity was a

but-for cause of his termination. Knickmeyer appeals, and we affirm.

In order to prevail on his hostile work environment claim, Knickmeyer was

required to show, among other things, that the alleged harassment “was sufficiently

severe or pervasive to alter the conditions of [his] employment and create an

abusive work environment.” Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.

2002) (quotations omitted). He failed to do so. The comments he complained of

were isolated in nature, and “[s]imply causing an employee offense based on an

isolated comment is not sufficient to create actionable harassment under Title VII.”

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (citation

omitted). Knickmeyer also presented hearsay statements in support of his hostile

work environment claim, which the district court properly disregarded. See Beyene

v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (“[O]nly

admissible evidence may be considered by the trial court in ruling on a motion for

summary judgment.”).

3 The State was likewise entitled to summary judgment on Knickmeyer’s

retaliatory discharge claim. As the district court properly concluded, Knickmeyer

did not present sufficient evidence that his protected activity – filing

race-discrimination complaints internally at the EJDC and with the NERC – was a

“but-for” cause of his termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133

S.Ct. 2517, 2533 (2013); Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (considering causation in the context of a retaliation claim by reference to

the time “between an employer’s knowledge of protected activity and an adverse

employment action”) (emphasis added). Knickmeyer failed to show that his

protected activity and his termination were so close as to support an inference of

but-for causation.

Knickmeyer also argued that other allegedly suspicious timing supported an

inference of but-for causation. But the fact that he was not fired until October

2013 is more plausibly explained by the fact that the EJDC spent many months

carefully investigating the allegations against him.

Finally, during post-termination arbitration proceedings, Knickmeyer

testified that he believed he was fired because of his political incorrectness. This

testimony precludes a finding that his protected activity was a but-for cause of his

termination.

4 The judgment of the district court is AFFIRMED.

5