
    John SUMMERS, Plaintiff — Appellant, v. The State of NEVADA, ex rel. Its Department of Prisons, Defendant — Appellee.
    No. 00-16193.
    D.C. No. CV-99-00161-HDM.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Nov. 8, 2001.
    Decided Dec. 10, 2001.
    
      Before CANEY, GRABER, and PAEZ, Circuit Judges.
   MEMORANDUM

John Summers appeals the district court’s grant of summary judgment in favor of the State of Nevada Department of Prisons on his Title VII gender discrimination claim. The district court found that, while Summers may have made out a prima facie case of discrimination, he failed to establish a genuine issue as to whether the reason given for his termination was pretextual. Because we hold that Summers did not even make out the a prima facie case of gender discrimination, we affirm the district court’s grant of summary judgment.

To survive the summary judgment motion, Summers was required to establish that he was performing according to his employer’s legitimate expectations. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998). He failed to make this showing. During his short time at the prison, his performance evaluations steadily declined from a solid “standard” rating to a “needs improvement” rating. His employer’s concerns about his performance were largely the same on each consecutive evaluation; he was told what he needed to do to improve and failed to make the necessary changes in his behavior.

The chewing tobacco incident, only one of numerous problems, is telling. Summers had been counseled not to continue to spit tobacco into trash cans in the nurses’ area. A reasonable nurse could not have believed that it was an appropriate alternative to spit tobacco and saliva into a pill container, close the container, and leave the container on a shelf where medicines were kept. Summers has failed to produce evidence that would permit a rational trier of fact to find that he was meeting the reasonable expectations of his employer.

Because Summers failed to raise an issue of fact that he was performing satisfactorily, the district court’s grant of sum: mary judgment in favor of the State of Nevada is

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     