Pat Delos Santos v. JOHN E. POTTER, Postmaster General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAT DELOS SANTOS,
Plaintiff - Appellant,
v.
JOHN E. POTTER, Postmaster General,
Defendant - Appellee.
No. 09-15257
D.C. No. 3:06-cv-02948-VRW
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, Chief District Judge, Presiding
Submitted March 11, 2010**
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
Delos Santos appeals from the district court’s summary judgment in favor of
defendant Potter, Postmaster General. Delos Santos alleges that he was coerced
into resigning his position with the postal service on account of his age and/or race,
in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
FILED
MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 621 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. We review the district court’s summary judgment de novo. Universal Health
Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Because Delos
Santos has failed to establish a prima facie case, we affirm.
We evaluate ADEA and Title VII claims based on circumstantial evidence
through the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03 (1973). At the first step of the McDonnell Douglas
analysis, Delos Santos must establish a prima facie case of discrimination. See
Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). He may
meet this burden by demonstrating: (1) that he was a member of a protected class;
(2) that he was performing his job in a satisfactory manner; (3) that he suffered an
adverse employment action; and (4) that he was treated differently than a similarly
situated employee who did not belong to the same protected class. Cornwell v.
Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).
Delos Santos resigned his position with the postal service after an
investigation uncovered evidence that he had rifled mail. Delos Santos alleges that
his resignation was coerced. To show that his allegedly coerced resignation was
discriminatory, Delos Santos alleges that two similarly situated employees outside
of his protected class, Lee and Regacho, received more favorable treatment. Delos

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Santos has proven neither that Lee and Regacho were outside of his protected class
as a matter of race or age nor that they were similarly situated yet received more
favorable treatment.
Delos Santos is an Asian-American and was 56 years old at the time of his
resignation. Lee and Regacho are both within the same protected class as Delos
Santos with regard to race. Regacho was 47 at the relevant time and therefore falls
within the same protected category as Delos Santos with respect to age. Delos
Santos offered no evidence – only speculation – that Lee was in a different
category with respect to age.
Delos Santos has not proven that either Lee and Regacho were similarly
situated because, while Delos Santos was observed rifling mail on several
occasions, Lee and Regacho were observed in only a single incident of mail rifling.
Delos Santos has not proven that Lee and Regacho received more favorable
treatment, because Delos Santos resigned his position. Delos Santos alleges that he
was denied access to policies and procedures applied to other employees, such as
Lee and Regacho. The procedures cited by Delos Santos apply to employees who
are disciplined or removed from service and not those who resign, like Delos
Santos.
AFFIRMED.

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