NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 11 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER SLACK, No. 22-15507

Plaintiff-Appellant, D.C. No. 2:18-cv-00899-GMN-BNW v.

UNITED AIRLINES, INC., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted January 10, 2023** San Francisco, California

Before: WALLACE, SILVERMAN, and OWENS, Circuit Judges.

Peter Slack appeals from the district court’s summary judgment in favor of

United Airlines, Inc. in his action alleging that United engaged in gender

discrimination, racial discrimination, and retaliation when it terminated Slack’s

employment after sexual harassment allegations were made against him by female

* 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). colleagues. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a

district court’s summary judgment de novo, Carver v. Molder, 606 F.3d 690, 695

(9th Cir. 2010), and we affirm.

The district court did not err in granting summary judgment to United on

Slack’s gender discrimination claim. Slack failed to prove a prima facie case of

gender discrimination because he failed to provide evidence that similarly situated

employees not in his protected class were treated more favorably than he was.

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 2020). Even if

Slack’s contention on this element—that the female colleagues who accused him

of sexual harassment in fact sexually harassed him but were not terminated—was

supported by evidence, the female colleagues are not similarly situated to Slack

because Slack’s conduct gave rise to a formal sexual harassment complaint while

the female colleagues’ alleged conduct was raised only “defensively in the context

of the company’s investigations.” See Hawn v. Executive Mgmt., Inc., 615 F.3d

1151, 1160–61 (9th Cir. 2010). Additionally, even if Slack had alleged his prima

facie case, Slack failed to provide evidence that United’s proffered legitimate non-

discriminatory reason for his termination—Slack’s violation of United’s sexual

harassment policy—was pretext for gender discrimination. Vasquez v. Cnty. of Los

Angeles, 349 F.3d 634, 640 (9th Cir. 2003).

The district court did not err in granting summary judgment to United on

2 Slack’s retaliation claim. Slack did not prove that he engaged in a protected

activity. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). His

contentions that he challenged the “harassment culture” at United or that other

employees sexually harassed him were unsupported by evidence other than his

own statements. Even if they were supported, he again failed to provide evidence

that United’s termination of him for violating its sexual harassment policy was

pretextual.

The district court did not err in granting summary judgment to United on

Slack’s racial discrimination claim under 42 U.S.C. § 1981. As with his gender

discrimination claim, he failed to make out a prima facie case because he failed to

provide evidence that similarly situated employees outside his race were treated

more favorably than he was. Zeinali v. Raytheon Co., 636 F.3d 544, 552 (9th Cir.

2011). Additionally, Slack failed to prove that, “but for race, [he] would not have

suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of Afr.

Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020).

AFFIRMED.

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