16 Fair Empl.prac.cas. 188, 15 Empl. Prac.dec. P 7952eulalio Frausto and Peter L. Smith, Individually and Onbehalf of All Others Similarly Situated, Plaintiff-appellant, v. Legal Aid Society of San Diego, Inc., Defenders Program Ofsan Diego, Inc., Gregory E. Knoll and Stanleyconant, Defendant-appellee, 563 F.2d 1324 (9th Cir. 1977)

In this Title VII employment discrimination case, appellant Frausto¹  alleged that he was not hired by Stanley Conant (Conant), who was the Executive Director of Defenders Program of San Diego, Inc., (Defenders) because he was a Mexican-American. The issues were tried before the court, sitting without a jury. At the end of plaintiff's case-in-chief, the court granted defendants' motion for involuntary dismissal under Fed.R.Civ.Proc. 41(b). The court ruled that Defenders' failure to hire Frausto was not based on any racial reasons. Frausto appeals. We affirm.

BACKGROUND

Frausto, a Mexican-American male, is an attorney and a member of the California Bar. He graduated from Hastings School of Law in 1972. After graduating he worked for one year as a staff attorney for the Alameda County Legal Aid Society. He worked approximately another year and a half for the Legal Aid Society of San Diego, Inc. His last year with Legal Aid Society was spent as Supervising Attorney.

Defenders is an organization which defends indigent persons accused of crimes in the California State courts. Conant, as the Executive Director of Defenders, was the sole person responsible for hiring Defenders' staff attorneys.

The events leading to this action began on November 19, 1974, when Frausto submitted an application letter and resume to Conant asking for employment as a staff attorney with Defenders. On November 25 Frausto was interviewed by Conant for a period of about fifteen minutes.

Before this interview with Frausto, Conant had learned about certain events occurring in the San Diego Legal Aid office while Frausto was Supervising Attorney, which led Conant to question Frausto's professional judgment.²  Conant was also aware of some instances where Frausto was unable to get along with other persons.³ 

During the interview Conant had hoped that Frausto would dispel these unfavorable impressions. This did not happen. Instead, Conant was even less impressed with Frausto as a candidate for employment. Conant felt that the interview was "a very difficult one" because Frausto was not communicative and refused to discuss things "in an open, candid and forthright manner." Conant felt that Frausto would have a difficult time working well with others because of his general demeanor and what appeared to Conant to be an "underlying hostility."

Conant also felt that Frausto had an unsatisfactory employment history for the type of position he was seeking. While Frausto did have two years' experience out of law school, he had already held two different jobs and was then seeking his third. Conant, in turn, was seeking to employ persons who were willing to give a longer term commitment. He found that persons immediately out of law school were usually more willing to accept this longer commitment.

Based on this employment history, the impressions gained from the interview, and Frausto's general reputation in the legal community, Conant did not hire Frausto as a Staff Attorney. Subsequent to the Frausto interview, however, several nonMexican-American Staff Attorneys were hired by Defenders. Conant testified that the vacancies which arose in the nine months after Frausto's application had previously been promised to other persons contingent on their passing the Bar examination. The new employees who began working during this period were Wayne Mayer, Gregory Jacobson, Thomas Penfield, and Carol Muehling. Through the clinical program of Defenders or previous interviews, each of them had been told that if they passed the Bar, they would be given positions as other employees left. By the time another opening was available, Frausto was newly employed elsewhere at a substantially better salary.

PROCEEDINGS BELOW

Considering himself wronged by Defenders' rejection of his application, Frausto on July 25, 1975, filed charges of employment discrimination against Defenders and Conant with the California Fair Employment Practices Commission (FEPC).⁴  He then filed charges with the Equal Employment Opportunity Commission which issued Frausto its "Right to Sue Letter" on January 30, 1976.

Finally, on February 9, 1976, Frausto brought this action in the district court. He charged that Defenders and Conant had violated 42 U.S.C. § 2000e-2(a) (1) (Title VII (of the Civil Rights Act of 1964))⁵ ; 42 U.S.C. § 1981⁶  and 42 U.S.C. § 1985(3)⁷ .

The case was tried before the court. At the end of plaintiff's presentation of the evidence the trial court granted Defenders' aNd conant's motion for involuntary dismissal undEr rule 41(b), fED.r.cIv.proc. Frausto appeals.

THE INVOLUNTARY DISMISSAL

Fed.R.Civ.Proc. 41(b) states in pertinent part:

"After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff . . . . If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a)."

The trial court made several findings of fact, the most important of which is number 11, which states:

"There is no evidence, direct or circumstantial, to support a finding that either defendant refused to hire plaintiff for reasons relating to his Mexican-American ancestry." (C.R. 183).

On appeal these findings of fact are not to be set aside unless clearly erroneous. (Rule 52(a), Fed.R.Civ.Proc.), Sime v. Trustees of Cal. State University and College, 526 F.2d 1112, 1113 (9th Cir. 1975). From our reading of the entire record in this case, not only are the findings (especially the one just quoted) not erroneous, but they are absolutely correct.

Frausto raises several arguments on appeal, none of which is persuasive. His first salvo is aimed at the trial judge who, Frausto contends, "did not display a generous, liberal attitude toward appellant's cause of action." (Appellant's Opening Brief (AOB), page 12). This is complete nonsense. All that it takes is one reading of the trial transcript to see that the trial court was more than fair and quite liberal in allowing Frausto the opportunity to try and prove his case. The simple fact of the matter is Frausto had no case to prove. Moreover, no litigant can claim entitlement to a trial judge that has a "generous" and "liberal attitude" toward his claim. He is entitled to one who is detached, fair and impartial. That entitlement was fulfilled in this case. Other allegations by Frausto that the trial court was unsympathetic or hostile to Frausto's cause of action are largely untrue⁸  and, in any event, are irrelevant to the issues presented on appeal.

Next, Frausto argues that he is a victim of racial employment discrimination because he was more qualified than the applicants who were hired after his application, and that Conant and Defenders can give no legitimate nondiscriminatory reasons for not hiring him. We disagree. While true that Frausto did have a slightly higher grade point average than some (though not all) of the staff attorneys hired after his application and he may have had a year or so more experience out of law school, these are not the only factors which make one "qualified" for an employment position as trial counsel. The bulk of Defenders' caseload was the defense of persons charged with crimes. Frausto admitted that he had no criminal experience. Another qualification at Defenders was a willingness to commit oneself for a longer period of time. Here also Frausto was less qualified because he was already applying for his third job in just over two years. And, finally, a key ingredient in a qualified candidate for any position such as a staff attorney in a legal office is a good professional reputation and the ability to get along with people. From the information Conant had gathered, Frausto was less qualified than the other applicants in this area as well.

There is nothing in Title VII which prevents employers from requiring that applicants be fit for the job. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) the Supreme Court stated:

"Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins." (401 U.S. at 436, 91 S. Ct. at 856)

From our reading of the record, it is clear to us that Conant had several legitimate non-racial and nondiscriminatory reasons for not hiring Frausto as a staff attorney.

Frausto next argues that he has established a prima facie case of racial employment discrimination. In McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court held that:

"The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." (411 U.S. at 802, 93 S. Ct. at 1824.)

Once a prima facie case has been established, however, the inquiry does not stop there. "The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, supra, at 802, 93 S. Ct. at 1824. In this case, even if we were to assume (without deciding) that Frausto had established a prima facie case, Conant and Defenders have more than met their burden by showing that there were many legitimate nondiscriminatory reasons for rejecting Frausto's application. The fact that they met their burden and proved their case through the testimony of Frausto's own witnesses and stipulated documentary evidence is of no moment.

Finally, Frausto contends that the relevant statistics presented at trial prove a case of employment discrimination. We disagree. The relevant statistics show that since its inception in 1968, Defenders has hired eight of the twelve Mexican-American persons who have applied for the position of staff attorney. In other words, Defenders has hired 66.67% of all Mexican-American staff attorney applicants. Statistically, how those hired relate to the other staff attorneys and the population in general the trial court found:

"In the aggregate, Defenders' hiring of Spanish-surnamed Staff Attorneys and investigators has, as a total percentage of Staff Attorneys and investigators hired, exceeded all available statistical indicia of Spanish-surnamed attorneys as a percentage of San Diego County attorneys; Spanish-surnamed persons classified as 'Professional, Technical, etc.' as a percentage of those persons in San Diego County so classified; and Spanish-surnamed persons in the population and Spanish-surnamed persons in the labor force as a percentage of total persons in the San Diego County population and labor force." (C.R. 183-184)

This finding is not erroneous. In short, we find that Frausto cannot point to any facts or figures which show that Defenders has been a participant in racial employment discrimination.

CONCLUSION

We conclude then that the trial court's finding that Frausto was not a victim of racial discrimination is not clearly erroneous and that the trial court did not err in granting Conant's and Defenders' motion for involuntary dismissal under Rule 41(b).

More specifically, we hold that under the facts of this case a poor interview, an unstable employment history, a poor reputation in the legal community, and the inability to get along with people are legitimate, nondiscriminatory reasons for rejecting appellant's employment application and are sufficient to defeat an employment discrimination action under Title VII and 42 U.S.C. § 1981.

AFFIRMED.