NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MALINDA SLATON, No. 20-15808

Plaintiff-Appellant, D.C. No. 2:17-cv-01561-RFB-DJA v.

L.L.O., INC., DBA Acme Electric, MEMORANDUM*

Defendant-Appellee,

and

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL

UNION 357,

Defendant.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted March 12, 2021** Las Vegas, Nevada

Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges.

* 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). Malinda Slaton appeals the district court’s order of summary judgment in

favor of L.L.O, Inc., on her claim of discrimination under Title VII of the Civil

Rights Act of 1964. 42 U.S.C. § 2000e-2. We have jurisdiction under 28 U.S.C. §

1291. Reviewing the district court’s summary judgment de novo, Universal

Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004), we affirm.

The district court correctly concluded that Slaton failed to carry her initial

burden to establish that similarly situated men were treated more favorably than

her, which was an essential element of her prima facie case. Chuang v. Univ. of

Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). On October 26,

2016, a supervisor admonished Slaton and unspecified members of her truck crew

that failure to report damage to company equipment would result in termination.

Two days later, Slaton was involved in an incident where company equipment was

damaged, and she did not immediately report that damage to her supervisor. The

supervisor fired Slaton, for “fail[ing] to report damage to company equipment.”

Slaton claimed that several male employees caused damage to company equipment

without being fired. But a rational juror would not be able to discern if the male

employees were similarly situated to Slaton. See Moran v. Selig, 447 F.3d 748,

755 (9th Cir. 2006) (holding that to prove that one is “similarly situated,” a

plaintiff must show that they are similarly situated “in all material respects”). The

2 incidents cited mostly occurred before the supervisor’s warning, and Slaton failed

to specify if those men were otherwise warned. Although one incident occurred

the day after the October 26 warning, Slaton did not specify whether the

individual, Carrello, received that warning or any other warning. It also appears he

reported the damage. Viewing the evidence in the light most favorable to Slaton, a

juror would not be able to infer unlawful discrimination.

AFFIRMED.

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