Tony COLAGIOVANNI, Plaintiff-Appellant, v. CH2M HILL, INC., Defendant-Appellee, 692 F. App'x 860

MEMORANDUM This is an appeal from a grant of

summary judgment in favor of the employer in plaintiffs suit alleging breach of a Business Conduct Agreement containing a provision barring retaliation for reporting misconduct. The district court ruled on the basis of an Employee Administration Agreement, which provided that plaintiff was an employee at will and therefore could be terminated for any reason. Although we conclude the employer was also bound by the terms of the Business Conduct Agreement, this does not end the analysis. We can affirm

summary judgment on the basis of any ground supported by the record. See Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012). The issue is whether there is any triable issue of fact concerning whether the plaintiff was terminated for reporting misconduct, rather than on the basis of another, non-retaliatory reason. Under Nevada law, the plaintiff has to show not only the existence of a valid contract, but also a breach by his employer. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 899 (9th Cir. 2013). We conclude there is no triable issue as to whether the employer breached.

Even assuming that the more recent actions of plaintiffs co-worker, Kenneth Gilbreth, amounted to misconduct, plaintiff made no report of those actions that could have formed the basis for retaliatory termination. The employer gave a non-retaliative reason for the termination.

Summary judgment was appropriate. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (affirming

summary judgment where employee’s evidence was “not sufficiently probative that it would allow a reasonable factfinder to conclude either that the alleged reason for his discharge was false, or that the true reason for his discharge was a discriminatory one”). We therefore affirm. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.