Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

In an action for wrongful termination Plaintiff-Appellant, Jayne Underhill ("Underhill") brought suit against her employer, Triangle Publications, Inc. ("Triangle"). The district court found that Underhill's claims were preempted and governed by the Employee Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, and granted Triangle's motion for summary judgment. ER, exhibit 23, Statement of Proposed Uncontroverted Facts and Conclusions of Law, p. 4. Underhill's only contention on appeal is that she established a prima facie case under ERISA, and that summary judgment should not have been granted since there was a genuine issue of material fact. A grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

The evidence which Underhill claims presents a genuine issue of material fact are statements made in four declarations by herself and three coworkers in opposition to defendant's motion for summary judgment. An affidavit containing "only conclusory allegations, not backed up by statements of fact, [ ] cannot defeat a motion for summary judgment." Shane v. Greyhound Lines, Inc., 868 F.2d 1057, (9th Cir. 1989), see Angel v. Seattle-First Nat. Bank, 653 F.2d 1293, 1299 (9th Cir. 1981). The affidavits Underhill presents contain only conclusory statements about the knowledge and intent of Miller. Since no factual basis supports these statements they do not constitute strong enough circumstantial evidence of Miller's purpose to interfere with Underhill's ERISA benefits to defeat the motion for summary judgment.

The district court's grant of summary judgment is AFFIRMED.