Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^** 

Roderick McNeal appeals the district court's grant of summary judgment in favor of the Postmaster General in his employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 633a (ADEA). McNeal contends that the district court erred by finding that he failed to establish a prima facie case of disparate treatment based on his race and age. We have jurisdiction under 28 U.S.C. § 1291 and affirm the judgment.

This court reviews the district court's grant of summary judgment de novo. Yartzoff v. Thomas, 809 F.2d 1371, 1373 (9th Cir. 1987). Viewing the evidence in the light most favorable to the nonmoving party, this court determines whether "there remains any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Id.

To prevail in a Title VII disparate treatment case, McNeal must show that he was "singled out and treated less favorably than others similarly situated on account of race...." Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982). "Disparate treatment claims under the ADEA 'are analyzed by the same standard used to analyze disparate treatment claims under Title VII.' " Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991) (citation omitted).

The plaintiff bears the initial burden of establishing a prima facie case of discrimination to create a genuine issue of material fact sufficient to foreclose summary judgment. See Pejic v. Hughes Helicopter, 840 F.2d 667, 672 (9th Cir. 1988); Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1358 (9th Cir. 1985). The plaintiff must produce a preponderance of evidence supporting an inference of intentional discrimination. Fragante v. City and County of Honolulu, 888 F.2d 591, 595 (9th Cir.), cert. denied, 110 S. Ct. 1811 (1990); Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1419 (9th Cir. 1988) ("purely conclusory allegations of discrimination, with no concrete, relevant particulars, will not bar summary judgment"). Evidence of different treatment for other employees engaged in similar acts of wrongdoing supports a plaintiff's prima facie case. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987).

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to "rebut the presumption of discrimination by 'articulating some legitimate, nondiscriminatory reason' for the adverse action." Fragante, 888 F.2d at 595 (citation omitted). The plaintiff then has the burden to show that the defendant's proffered reason is a pretext for invidious discrimination. Id.

Here, McNeal violated written rules and arrived at work late on a number of occasions during the period in question. McNeal's supervisor took formal disciplinary steps only after McNeal failed to heed informal warnings.¹  McNeal failed to introduce evidence to show that he was treated differently than other security officer with similar attendance records.²  Aside from his own statements, McNeal did not present sufficient evidence to support an inference of discrimination based on his race or age. See Forsberg, 840 F.2d at 1419.

Thus, McNeal's employment discrimination claim essentially rested on the fact that he was a man of color and 57 years old. These facts alone are insufficient to suggest that the actions taken by McNeal's supervisor were based on anything other than McNeal's substandard job performance.³  See Forsberg, 840 F.2d at 1419. Therefore, the district court did not err by concluding that McNeal failed to establish a prima facie case of discrimination and properly granted summary judgment. Id. at 675.⁴ 

We deny the Postmaster General's request for attorney's fees because McNeal's claims are not "frivolous, unreasonable, groundless or in bad faith." Mitchell v. Office of Los Angeles County, 805 F.2d 844, 848 (9th Cir. 1986), cert. denied, 484 U.S. 858 (1987).

AFFIRMED.