De Flores v. Ashcroft

36 F. App'x 331

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2002
• Docket: No. 01-55814; D.C. No. CV-99-12063-HLH
• Status: Published

Opinion

MEMORANDUM

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After being terminated from his job as an FBI agent, Paul DeFlores brought claims against the Attorney General under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. DeFlores claims that the FBI discriminated against him based on his ethnicity, age, and Equal Employment Opportunity (EEO) activity. The district court granted summary judgment in favor of John Ashcroft, and we affirm.

Ashcroft’s summary judgment motion asserted that the FBI terminated DeFlores for a legitimate, non-diseriminatory reason, namely its conclusion that DeFlores perpetrated insurance fraud. DeFlores presents no direct evidence of discriminatory animus but merely attempts to undermine the credibility of the FBI’s stated reason for terminating him. He therefore bears a burden of proving that the stated reason for termination was mere pretense for discrimination, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and he must present specific and substantial evidence that the FBI’s reason for termination is unworthy of credence, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). There is ample evidence of the credibility of the FBI’s conclusion that DeFlores was dishonest, including many actions to which DeFlores admits. DeFlores attempts to provide innocent explanations of his behavior, but he fails to raise a triable issue of fact that it was not reasonable for the FBI to interpret the facts as it did. DeFlores points to the district attorney’s decision not to bring charges against him, but the FBI’s termination letter noted that this exercise of prosecutorial discretion did not exonerate DeFlores of violating the FBI’s strict code of honesty. DeFlores does not present any admissible evidence of a comparable instance of an agent who acted as he did and was not terminated. While we accept DeFlores’s argument that the terminating official knew that he is Hispanic and participated in EEO activity, this shows only that discrimination was possible but does not raise even an inference of discrimination.

DeFlores knew from the tentative ruling that the district court intended to grant summary judgment on all claims but neither objected nor sought a continuance. O’Keefe v. Van Boening, WSP, 82 F.3d 322, 324 (9th Cir.1996); Portsmouth Square, Inc. v. Shareholders Protective Comm., 770 F.2d 866, 869-70 (9th Cir. 1985).

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 9th Cir. R. 36-3.