Fabish

MEMORANDUM **

Steven David Fabish, a letter carrier for the United States Postal Service, appeals *503 the district court’s summary judgment dismissal of his action alleging wrongful termination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (a)(1), and state tort law. 1 We affirm.

(1) Fabish has failed to make out a prima facie case of age discrimination under either the disparate treatment or the disparate impact theory. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir.1990); Palmer v. United States, 794 F.2d 534, 537 (9th Cir.1986). Fabish’s claim of disparate treatment fails because, inter alia, he has not shown that he was replaced with a younger employee or that he was treated less favorably than similarly situated younger employees. See Rose, 902 F.2d at 1423 ; see also Villiarimo v. Aloha Island Air. Inc., 281 F.3d 1054, 1062 (9th Cir.2002). His disparate impact argument also fails because he has not shown that the so-called “canary policy” has a greater effect on older employees; nor has he provided statistical evidence in support of the argument. See Rose, 902 F.2d at 1424 ; Palmer, 794 F.2d at 538-39 .

(2) Fabish does not dispute…