NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 8 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY MITCHELL, an individual, No. 18-55763

Plaintiff-Appellant, D.C. No. 2:16-cv-07695-PA-MRW v.

KEVIN K. MCALEENAN, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted November 4, 2019** Pasadena, California

Before: FARRIS, McKEOWN, and PARKER,*** Circuit Judges.

Anthony Mitchell (“Mitchell”) alleged that the Transportation Security

Administration (“TSA”) removed him as a Transportation Safety Officer (“TSO”)

* 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 Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. based on race, sex, color, and age, in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.. The parties are familiar

with the facts so we do not repeat them. Mitchell appeals the district court’s

summary judgment to the TSA. We affirm.

Mitchell cannot establish a prima facie case under Title VII. He is not

similarly situated in “all material respects” to the purported comparators. Moran v.

Selig, 447 F.3d 748, 755 (9th Cir. 2006). Unlike Mitchell, one of the purported

comparators competed for and received a different position within the TSA with

markedly different essential duties. The remaining comparators presented medical

records without indication of permanent restriction, obtained unqualified release to

full duty, or had both.

In contrast, the physician appointed by the Department of Labor concluded

that Mitchell will have “permanent restriction” in the use of his left extremities.

Several months later, the same physician confirmed the unfortunate prognosis.

Mitchell’s treating physician also observed persistent pain and severe limitations in

the left extremities.

The treating physician’s release to “regular work with no restrictions” does

not create a genuine issue of material fact. Mitchell’s release was issued “per

[patient’s] request,” based on what he wanted. No medical test or observable

2 improvement supported the release. The qualified release obtained at Mitchell’s

insistence does not establish that Mitchell is similarly situated to the purported

comparators. See Weil v. Citizen Telecom Servs. Co., LLC, 922 F.3d 993, 1004

(9th Cir. 2019) (similarly situated employees “display similar conduct”).

Nor can Mitchell establish a prima facie case of discrimination under the

ADEA. He did not offer evidence showing that the younger employees who

allegedly replaced him possessed equal or lesser qualifications, or evidence

supporting “an inference of age discrimination.” See Diaz v. Eagle Produce Ltd.

P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

The TSA “clearly set forth” a “legitimate, nondiscriminatory reason” for the

removal. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 257 (1981). It

considered the medical documents, then decided to remove Mitchell “based solely

on [his] physical inability to perform the full range of [TSO] duties.” Even if a

prima facie case can be established, this “individualized” explanation based on

“concerns about job performance unrelated to [Mitchell’s] protected status” would

be sufficient to rebut it. Diaz, 521 F.3d at 1212.

Finally, Mitchell did not offer “specific and substantial evidence” that the

TSA’s reason for the removal was a pretext for discrimination. Aragon v. Republic

Silver State Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002). The TSA showed

that it “honestly believed” its proffered reason. See Villiarimo v. Aloha Island Air,

3 Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). A TSA human resources specialist

obtained confirmation from the treating physician that Mitchell was unable to

perform the essential duties of a TSO.

AFFIRMED.

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