Unpublished Disposition, 928 F.2d 408 (9th Cir. 1980)

No. 89-15072.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Northern District of California; No. CV-85-4373-TEH, Thelton E. Henderson, District Judge, Presiding.

N.D. Cal.

AFFIRMED.

Before SCHROEDER and CANBY, Circuit Judges and KEEP^* , District Judge.

MEMORANDUm^** 

Lennie L. Gaines brought this suit against the U.S. Department of the Treasury, Internal Revenue Service, San Francisco Division (the "Department"), alleging that she was denied promotion and discharged on account of her race and gender, in violation of Title VII (42 U.S.C. 2000e et seq.), and on account of her age, in violation of the ADEA (29 U.S.C. 621 et seq.). The district court awarded summary judgment to the Department. Having reviewed de novo the district court's judgment, Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), we affirm.

Failure To Promote

In 1976, Gaines sued the Department, claiming that its denial of her promotion to a TLS-987 position constituted unlawful discrimination. The district court awarded summary judgment to the Department on the ground that Gaines could not make out a prima facie case of discrimination because there was no TLS-987 position at the San Francisco Division office where Gaines worked. Gaines v. Simon, No. C-76-0399-WAI, slip op. (N.D. Cal., April 24, 1980), aff'd sub nom., Gaines v. Regan, No. 80-4266, slip op. (9th Cir. 1982).

In supporting its motion for summary judgment in the instant case, the Department pointed out (1) that Gaines's present claim is that she should have been promoted to a TLS-987 position, and (2) that there is still no such position at the San Francisco office.¹ In response, Gaines produced nothing to challenge the correctness of these two statements. Thus, there is insufficient evidence to establish a genuine issue of fact with respect to an element essential to the prima facie case, and summary judgment for the Department is appropriate. See Sigmond v. Brown, 828 F.2d 8, 9 (9th Cir, 1987).

Discharge

By introducing testimonial and documentary evidence that Gaines was late or absent from work, without permission, on over seventy occasions, the Department succeeded in proffering a legitimate, nondiscriminatory reason for discharging Gaines. The burden then fell upon Gaines to show that there was at least a genuine issue of fact as to the truthfulness of the Department's explanation. See Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1437 (9th Cir. 1990). Gaines, however, failed to provide any evidence that her record of lateness and absence was a mere pretext for her discharge. She made only vague, unsubstantiated assertions that other office personnel were late and that she was in fact working while absent from the office. Given the absence of any evidence suggesting that the Department's explanation lacked credibility, summary judgment was appropriate. See id. at 1439.

AFFIRMED.