Alforque v. U.S. Customs Service

72 F. App'x 537

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2003
• Docket: No. 02-55707
• Status: Published

Opinion

MEMORANDUM

*

The Customs Service presented overwhelming evidence that it had a nondiscriminatory reason for terminating Nanette Alforque’s employment — her deficient performance — and Alforque did not provide specific, substantial evidence demonstrating that this proffered explanation was unworthy of credence. See Road v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1194 (9th Cir.2003) (citation omitted).

Complaints that Alforque made to union representatives before she was fired could not be portrayed as opposition to discriminatory employment practices Instead, they were run-of-the-mill employment disputes that Alforque tried to recast as complaints about unequal treatment and discrimination. Thus, Alforque could not demonstrate that the Customs Service’s decision to terminate her employment was in retaliation for her participation in a protected activity. See Villiarimo v. Aloha Island Air Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).

The other probationary employees working with Alforque committed markedly fewer errors and their performances improved throughout their probationary periods. The records documenting these performances were destroyed, thus hampering Alforque’s ability to demonstrate that similarly situated employees with comparable error rates were nevertheless retained. However, nothing in the record indicates that this destruction was done in bad faith. Additionally, Alforque did not utilize the discovery process in order to obtain her hypothetically inculpatory evidence by any other method. Consequently, Alforque has failed to create a triable issue of fact regarding the other probationary employees’ performances. See Chuang v. U.C. Board of Trustees, 225 F.3d 1115, 1127 (9th Cir.2000).

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.