Unpublished Disposition, 872 F.2d 427 (9th Cir. 1986)

MEMORANDUM^* 

John N. Ford appeals the district court's judgment rejecting his employment discrimination and wrongful discharge claims against his employer, Johnson's Freight Lines ("JFL").¹  He also appeals the denial of his motion for a new trial. We affirm.

FACTS AND PROCEEDINGS BELOW

Ford worked as a truck driver for JFL. JFL asks its employees to waive their rights to overtime payments. At the expiration of his previous waiver in January, 1986, Ford was presented with a form extending the waiver period through January, 1987. He did not sign this form.

On January 10, 1986, Ford commenced work at 10:00 am. After completing delivery of a truckload of horse bedding, he commenced a number of local pickups. His last assignment of the day was to pick up a shipment. When Ford realized his truck was too full for this shipment, he called the dispatcher. She told him to bring his truck in, and upon his arrival at approximately 6:00 pm, ordered him to take an empty truck back to pick up the remaining freight. Ford refused, stating he was tired, his eyes were burning from the horse bedding dust, and in any case, he was not paid for overtime. After the dispatcher ordered him to make the pickup anyway, and he again refused, she discharged him.

Ford commenced this action against JFL alleging employment discrimination based on race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (1982). Ford alleged that JFL had imposed an overly severe sanction for the incident because he was black. He claimed that, for the same reason, he had been given undesirable assignments throughout his employment and the worst truck in the fleet. To bolster his claim, he attempted to show a pattern of discrimination against blacks in JFL's hiring practices, promotion decisions and work assignments. Ford also alleged a common law cause of action for wrongful discharge, claiming he had been fired in retaliation for his refusal to waive his overtime rights.

The district court found that Ford had established a prima facie case of employment discrimination. However, because JFL established by a preponderance of the evidence a legitimate reason for the discharge, namely failure to obey the dispatcher's orders, and Ford did not establish by a preponderance of the evidence that the stated reason was a pretext for a racially motivated discharge, the court entered judgment in favor of JFL on the employment discrimination claim. The court also found against Ford on his wrongful discharge claim.

Thereafter, Ford filed a timely motion for a new trial pursuant to Federal Rule 59(a). The district court denied the motion, and this appeal followed.

DISCUSSION

This court reviews the denial of a motion for a new trial under Rule 59 for abuse of discretion. Coastal Transfer Co. v. Toyota Motor Sales, 833 F.2d 208, 211 (9th Cir. 1987).

Ford asserts two grounds justifying a new trial: (1) newly discovered evidence consisting of demographic information, a public safety law, and an affidavit from a black driver who had been denied employment by JFL, and (2) misconduct on the part of JFL consisting of intimidation of a witness and failure to release documents during discovery.

In order to establish that the trial court abused its discretion in denying a motion for new trial on the basis of new evidence, the movant must establish (1) that the evidence in question was discovered after trial, (2) that the party exercised "due diligence" to discover the evidence at an earlier stage, but was unable to do so, and (3) that the newly discovered evidence is of such a magnitude that production of it earlier would have been likely to change the disposition of the case. Coastal Transfer Co., 833 F.2d at 211; see also Engelhard Indus. v. Research Instrumental Corp., 324 F.2d 347, 352, (9th Cir. 1963), cert. denied, 377 U.S. 923 (1964).

In support of his motion for new trial, Ford submitted the affidavit of Ernest A. Brown which stated that Brown is a black man who applied for a job as a truck driver with JFL in 1986, but was not hired. During argument on his motion, he also presented a demographic breakdown of the area in which JFL was located. These pieces of evidence do not meet the requirements for newly discovered evidence. Ford offered no explanation for his failure to present this evidence at trial. Moreover, it is not likely that production of this evidence at an earlier stage would have changed the outcome. Although the evidence bolstered Ford's prima facie case, which Ford was able to make anyway, it does not go to the issue whether JFL had a legitimate reason for Ford's discharge.

Ford also presented, during oral argument in the district court, a copy of the Surface Transportation Assistance Act, 49 U.S.C. § 2305. In doing so, he attempted to press a new legal theory, namely that JFL violated federal law by discharging him for his refusal to drive the truck while his vision was impaired and he was fatigued. However, a new trial is not granted to enable the movant to present his case under a different legal theory. Bell Tel. Labs., Inc. v. Hughes Aircraft Co., 73 F.R.D. 16, 20 (D. Del. 1976). See generally 6A Moore's Federal Practice p 59.07 (1987 & Supp.1987-88).

Ford also maintains that he is entitled to a new trial because of alleged misconduct on the part of JFL. He alleges that JFL refused, without justification, to produce various records, and that this refusal raises an inference that the records would have been detrimental to JFL's case. Ford also alleges that JFL threatened a trial witness in an attempt to dissuade that witness from testifying.

Both of these issues were addressed below. As to the records, the trial court found that it would have been virtually impossible for JFL to produce the records Ford requested because they were not filed in such a way as to allow retrieval of those particular records. As to the alleged threat, the trial court found that the witness testified fully and in Ford's favor. Thus, it concluded, any attempted intimidation had no demonstrable effect on the witness' testimony.

Ford does not dispute these trial court findings. Moreover, a review of the record suggests no basis for disputing them. Thus the trial court was well within its discretion to deny a new trial based on the alleged misconduct.

As for the appeal of the underlying judgment, Ford disputes the following findings of fact: (1) JFL uniformly discharged employees for refusing an order of a supervisor and (2) JFL did not discriminate in hiring practices.

"Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Fed. R. Civ. P. 52(a). A finding of fact is not clearly erroneous if it represents a plausible account of the evidence. Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985). When a finding is based on the credibility of a witness, Rule 52(a) demands even greater deference to the trial court because only that court has observed the demeanor of the witness. Id. at 575. When a witness has given coherent and facially plausible testimony that is not contradicted by extrinsic evidence, a finding based on that testimony can virtually never be clear error. Id.

The district court's finding that JFL uniformly discharged employees for refusing orders is supported by the testimony of JFL's president, Russell Johnson. Johnson testified that employees are routinely fired for refusing assignments, and that he knew of three white employees terminated for such refusals. To support his contention that the district court erred in its finding, Ford points to evidence in the record that white employees were only reprimanded for causing damage to company vehicles and equipment and only suspended for losing their tempers with customers. This evidence, however, is not inconsistent with Johnson's testimony. Ford also suggests that a white employee received only a three-day suspension, rather than a discharge, for refusing to follow a dispatcher's orders. The trial record includes no evidence of this suspension; it first came to light in JFL's response to Ford's motion for a new trial. Thus nothing in the trial record contradicts Johnson's testimony, and the court cannot be held to have erred at the trial stage for relying on this testimony. Moreover, even if we considered this evidence, we cannot say that the evidence contradicts Johnson's testimony because we do not know the nature of the dispatcher's order that was refused. Suspension for an order less significant than an order to do an assignment would not be inconsistent with JFL's alleged policy.

Ford also disputes the trial court's ultimate conclusion that JFL established a legitimate, nondiscriminatory reason for Ford's discharge. Although the trial court labeled its finding a conclusion of law, the Supreme Court has classified the issue of discrimination as an ultimate question of fact. United States Postal Serv. v. Aiken, 460 U.S. 711, 715-16 (1983). It follows that this court reviews such a finding for clear error. See Kimbrough v. Secretary of United States Air Force, 764 F.2d 1279, 1281 (9th Cir. 1985) ("After a Title VII case is fully tried, we review the decision under the clearly erroneous standard applicable to factual determinations.").

The trial court's finding that JFL uniformly discharged employees for refusing assignments--which is not clearly erroneous, see supra --and the uncontested fact that Ford refused an assignment support the court's conclusion. In addition, the trial court findings that JFL had hired and promoted blacks in the past, and had hired employees who refused to sign overtime waivers support the conclusions that Ford's discharge was neither discriminatory nor retaliatory.

AFFIRMED.