                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              MAR 17 2010

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

PAT DELOS SANTOS,                                No. 09-15257

             Plaintiff - Appellant,              D.C. No. 3:06-cv-02948-VRW
  v.

JOHN E. POTTER, Postmaster General,              MEMORANDUM *

             Defendant - Appellee.

                  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.


        *
          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).
§ 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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