Unpublished Disposition, 899 F.2d 20 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 20 (9th Cir. 1990)

Noel David ZARAGOZA, Plaintiff-Appellant,v.PACIFIC GAS AND ELECTRIC COMPANY, Defendant-Appellee.

No. 89-15029.

United States Court of Appeals, Ninth Circuit.

Submitted March 14, 1990.* Decided April 5, 1990.

Before CHOY, TANG and BEEZER, Circuit Judges.


MEMORANDUM** 

Noel David Zaragoza appeals, pro se, the district court's grant of summary judgment to Pacific Gas & Electric Company (PG & E) in Zaragoza's employment discrimination action based upon national origin and violation of Zaragoza's constitutional rights. We affirm.

Zaragoza's claim that PG & E violated his rights under the First Amendment was properly dismissed, since he failed to allege the requisite state action. Rendell-Baker v. Kohn (1982) 457 U.S. 830 (1982) (First Amendment prohibits governmental infringement).

Zaragoza's claim that PG & E violated his rights under the Fourteenth Amendment was properly dismissed, since as to this claim also he failed to allege the requisite state action. Rendell-Baker, 457 U.S. at 837 (Fourteenth Amendment does not apply to acts of private entities); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974) (state regulation does not convert privately owned public utility's action into state action).

Zaragoza's claim that PG & E violated his rights under the Eighth Amendment was properly dismissed, since here again he failed to allege the requisite state action. Browning-Ferris Industries v. Kelco Disposal, Inc., --- U.S. ----, 109 S. Ct. 2909 (1989) (Eighth Amendment concerned with criminal prosecutions and punishments).

Zaragoza's claims that PG & E violated his rights under the Thirteenth and Fifteenth Amendments were properly dismissed, since he failed to allege facts which would support any arguable claims under these amendments.

The district court properly granted summary judgment to PG & E on Zaragoza's Title VII claim of national origin discrimination, since Zaragoza failed to meet his burden under Title VII. If an employer puts forward a legitimate, nondiscriminatory reason for its actions, the employee must prove the proffered reason was pretextual and the real reason was illegal or not credible. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). PG & E put forward legitimate, nondiscriminatory reasons for discharging Zaragoza. He was discharged after more than two years of continued poor performance. There is no evidence that PG & E discharged Zaragoza for any reason other than the ones stated.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3