NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK KLAMRZYNSKI, No. 22-16752

Plaintiff-Appellant, D.C. No. 2:21-cv-01327-MHB

v.

MEMORANDUM*

MARICOPA COUNTY COMMUNITY

COLLEGE DISTRICT, a jural entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Michelle H. Burns, Magistrate Judge, Presiding

Argued September 15, 2023 Arizona State U Phoenix

Before: HURWITZ, BUMATAY, and DESAI, Circuit Judges.

Mark Klamrzysnki appeals a district court’s order granting summary

judgment in favor of the Maricopa County Community College District (“the

District”) on Klamrzynski’s claims that the District violated the Americans with

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Disabilities Act (“ADA”) and the Arizona Civil Rights Act (“ACRA”).1

We review district court decisions granting summary judgment de novo.

Sjazer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). We apply the same standard

as the district court under Federal Rule of Civil Procedure 56(c). Adcock v. Chrysler

Corp., 166 F.3d 1290, 1292 (9th Cir. 1999) (citation omitted). We also follow the

familiar McDonnell Douglas framework to resolve Klamrzynski’s claims. Curley

v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014) (citing McDonell Douglas

Corp. v. Green, 411 U.S. 792, 802–04 (1973)). We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

1. Klamrzynski argues the district court should have applied the “motivating

factor standard” from Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063–68 (9th

Cir. 2005) to his claims. But we have already held that Head is no longer good law.

Murray v. Mayo Clinic, 934 F.3d 1101, 1102 (9th Cir. 2019). While Klamrzynski

contends that a later panel cannot overrule Head, a three-judge panel can treat the

decision of a prior panel as abrogated when “an intervening Supreme Court decision

undermines an existing precedent of the Ninth Circuit, and both cases are closely on

point.” Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)

(simplified). That’s what happened here. Murray, 934 F.3d at 1104–05. And we’re

1 ACRA claims are resolved under the same framework and standard as ADA claims, so we frame our analysis in terms of the ADA. See Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 762 (9th Cir. 1997).

2 bound by Murray’s determination that Head is no longer good law.

2. Klamrzynski next contends the district court erred in finding that his non-

professional emails constituted “a legitimate, nondiscriminatory reason” for the

District’s adverse employment decision. See EEOC v. Boeing, 577 F.3d 1044, 1049

(9th Cir. 2009) (simplified). We disagree. Discourteous conduct can be “a

legitimate, nondiscriminatory reason” for nonrenewal. See Bradley v. Harcourt,

Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) (concluding “behavior not in

accordance with customary business practices” constituted a nondiscriminatory

reason for adverse action in the Title VII context). Because the District only needed

to present a legitimate, nondiscriminatory reason for its decision, its production of

the emails satisfies this requirement. See Texas Dep’t of Comm. Affairs v. Burdine,

450 U.S. 248, 256–57 (1981).

3. Klamrzynski failed to produce “specific and substantial” evidence that the

District’s proffered reason for nonrenewal was merely a pretext for discrimination.

See Boeing, 577 F.3d at 1049. The only evidence Klamrzynski produced to show

pretext was the timing of his heart attack in relation to the District’s nonrenewal

decision. By itself, temporal proximity is insufficient to show pretext. Hashimoto

v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997). And there’s no other evidence in the

record supporting the conclusion that the District’s explanation for the nonrenewal

decision was pretextual.

3 The district court’s judgment is AFFIRMED.

4