848 F2d 1243 McCoy v. Pacific Gas and Electric Co

848 F.2d 1243

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Ethel A. McCOY, Plaintiff-Appellant,
v.
PACIFIC GAS AND ELECTRIC CO., and Does 1 through 20,
Defendants-Appellees.

No. 87-2409.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 1988.
Decided June 3, 1988.

Before POOLE, WIGGINS and BRUNETTI, Circuit Judges.


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1

MEMORANDUM*

2

Plaintiff Ethel A. McCoy appeals from the district court's order granting summary judgment in favor of the defendant, PG & E, on her racial discrimination claim.1 We affirm.

3

In 1983, an Internal Auditor reported that McCoy, the Head Cashier at the Bakersfield office, has cashed employees' personal checks (including her own) and held them back from deposit until the cash was returned. McCoy had also instructed other cashiers to provide this benefit to employees. Four other employees had either arranged for or participated in this practice. One of the four, Dana Dewey, had attempted to cover up the practice by notifying the others and using her personal funds to conceal the shortage when it was discovered. Both McCoy, who is black, and Dewey, who is white, were discharged. The other three employees (one black and two white) were disciplined.

4

McCoy and Dewey filed grievances. At the fifth and final step, a joint labor-management arbitration committee reinstated Dewey, finding that she had been trained and instructed by McCoy. The committee upheld McCoy's discharge, finding not only that she had repeatedly cashed checks and instructed others to do so, but also that she had falsely denied having done so.

5

Both parties agree that McCoy's case depends on her producing "evidence sufficient to support a finding that Caucasians, under similar circumstances, were treated more leniently than plaintiff, warranting an inference of a racially discriminatory motive." Fong v. American Airlines, Inc., 626 F.2d 759, 762 (9th Cir.1980). McCoy is unable to meet this burden. The uncontroverted evidence shows that, unlike Dewey, McCoy not only diverted funds but trained and instructed others to do so, and, when confronted, continued to deny these actions. Although Dewey initially tried to conceal the shortage, she later acknowledged her wrongdoing, and the grievance committee found that she had been trained and instructed by McCoy. Clearly, McCoy and Dewey were not similarly situated, so no inference of racially discriminatory motive could be drawn.

6

McCoy also states in her affidavit that her three supervisors, all white, were aware that the practice was common and accepted, and that one of them, Wilma Byrd, had trained her to accept such checks and was not disciplined. We accept these uncontroverted allegations as true; however, there is no evidence that any of McCoy's supervisors actually engaged in any check-cashing activity. Plaintiff's affidavit is thus insufficient to create an inference of racial motivation.

7

McCoy's citation to our recent decision in Perez v. Curcio, 841 F.2d 255 (9th Cir.1988), is unavailing. In Perez, an age discrimination case, the issue was whether the plaintiff had submitted sufficient evidence to raise a material issue as to whether the reasons given for her discharge were pretext. We held that the district court had improperly discounted several admitted facts as too remotely removed from the demotion decision. Id. at 258. Those facts included evidence of animus on the part of plaintiff's supervisor, the timing and manner of the investigation that led to plaintiff's demotion, and reliance on an after-hours remark as a motivation for the demotion. Id. at 257-58. No similar facts can be discerned here. When evidence of discriminatory intent is totally lacking, summary judgment is appropriate. Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir.1987).


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8

The decision of the district court is AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

Plaintiff does not appeal the dismissal of her sex discrimination claim for failure to file a charge with the E.E.O.C