Opinion
No. 06-15702.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 11, 2007.
Debra Jilka, Mesa, AZ, pro se.
William R. Hayden, Esq., Elizabeth Ann Petersen, Esq., Robert G. Vaught, Esq., Snell Wilmer, LLP, Phoenix, AZ, for Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona; Mary H. Murguia, District Judge, Presiding. D.C. No. CV-03-01369-PHX-MHM.
Before: LEAVY, RYMER, and T.G. NELSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Debra Jilka appeals pro se from the district court's summary judgment in favor of DriveTime Automotive Group, Inc. ("DriveTime"), in Jilka's action under the Age Discrimination in Employment Act of 1967 ("ADEA") and the Family and Medical Leave Act of 1993 ("FMLA"). We have jurisdiction under 28 U.S.C. § 1291. We review summary judgment de novo, Lindahl v. Air France, 930 F.2d 1434, 1436 (9th Cir. 1991), and review an order granting a motion to strike for abuse of discretion, Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224 n. 4 (9th Cir. 2005). We affirm.
The district court did not err when it ruled that Jilka failed to establish a prima facie case of age discrimination where Jilka did not offer evidence that she performed her job satisfactorily or was replaced by an employee with equal or inferior qualifications. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir. 2000). Further, the district court did not err when it concluded that, even if Jilka had established a prima facie case under the ADEA, Jilka's employer met its burden to articulate a legitimate nondiscriminatory reason for terminating her by presenting evidence of Jilka's poor performance. See id. at 1282.
The district court did not err when it granted summary judgment on Jilka's FMLA claim because she failed to raise a genuine issue of material fact as to whether her employment was terminated because she took FMLA-protected leave. See Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001).
Jilka also appeals the district court's striking of her response to DriveTime's reply and her response to DriveTime's supplemental statement of facts in support of its reply. The district court did not abuse its discretion by striking documents Jilka filed after scheduled briefing was already completed. Fed.R.Civ.P. 56; Fed.R.Civ.P. 83.
We deny Jilka's Request for Sanctions and Dismissal of Appellee's Brief for Untimely Filing, and we deny as moot Jilka's Motion for Stay of the Taxation of Costs Order Pending Appeal.