927 F2d 609 Jordening v. M Frank

927 F.2d 609

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Harold Gene JORDENING, Plaintiff-Appellant,
v.
Anthony M. FRANK, Postmaster General, United States Postal
Service, Defendant-Appellee.

No. 90-55634.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990.*
Decided Feb. 28, 1991.

Appeal from the United States District Court for the Central District of California; No. CV 89-1582-WJR, William J. Rea, District Judge, Presiding.

C.D.Cal.

AFFIRMED.

Before BRUNETTI, FERNANDEZ and THOMAS G. NELSON, Circuit Judges.

1

MEMORANDUM**

PROCEDURAL AND FACTUAL BACKGROUND

2

Appellant Harold Gene Jordening is a career employee of the United States Postal Service, employed at the Compton, California, Post Office. On January 7, 1987, the appellant received a Notice of Seven Day Suspension for the use of profanity in the work area of the Post Office. Appellant contends that the suspension was the result of racial discrimination directed toward him, a white male, by his black supervisor and the black postmaster of the Compton Post Office. Jordening pursued his administrative remedies to and including a hearing before an EEOC administrative law judge. The Postal Service adopted the ALJ's recommended decision that the appellant had failed to prove discrimination. That decision of the Postal Service was appealed to the EEOC Office of Review and Appeals which affirmed the Postal Service decision. Appellant then filed a complaint in the district court.

3

In the district court, as here, Jordening contends he was discriminated against in other instances. The district court rightly found that the only instance properly before it was the suspension for using profane language because Jordening had failed to pursue his administrative remedies in the other instances. After review of the matters submitted by the parties, the district court granted summary judgment in favor of the appellee dismissing Jordening's complaint on the basis that he had failed to make out a prima facie case of racially motivated discrimination. We affirm.

DISCUSSION

4

In pursuing a Title VII claim of discrimination, appellant had the burden of producing evidence adequate to create an inference that the suspension decision was based upon discriminatory criteria illegal under the Act. Fong v. American Airlines, Inc., 626 F.2d 759 (9th Cir.1980). To carry this burden, the appellant must produce evidence sufficient to support a finding that non-white employees were treated differently or more leniently than appellant under similar circumstances. Id. at 762. As noted by the district court, the evidence submitted by Jordening failed to show that any employee of a different race than Mr. Jordening, with a similar disciplinary record under the same supervisor, had received lesser discipline for the same offense. Absent such a showing, there is simply no basis for an inference that the suspension was motivated by racial discrimination.

5

Jordening did not present a prima facie case of discrimination to create a genuine issue of material fact sufficient to foreclose summary judgment. We have considered all of the contentions raised by Jordening. The trial court correctly granted appellee's motion for summary judgment.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 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