Unpublished Disposition, 904 F.2d 42 (9th Cir. 1990)

MEMORANDUM^** 

Andrew G. Yartzoff appeals pro se the district court's Rule 41(b) dismissal (after remand for further findings) of his Title VII action against the administrator of the United States Environmental Protection Agency.

* Yartzoff argues at the outset that no Rule 41(b) motion was pending when the district court granted the motion. The record is to the contrary. Although the district court initially stated it would deny the Rule 41(b) motion, defendant immediately asked permission "to make one or two points," to which the court replied, "All right." The court then took the matter "under advisement" and recessed for lunch. Upon reconvening, the court promptly granted the motion. RT at 56-59. The motion was thus alive and well when granted.

II

Yartzoff next challenges the district court's ruling on the merits. We must examine both the factual findings made by the district court, as well as its ultimate decision to dismiss. Johnson v. United States Postal Service, 756 F.2d 1461, 1464-1465 (9th Cir. 1985).

* We review factual findings under a Rule 41(b) motion for clear error. Johnson, 756 F.2d at 1464. There was no such error here.

In remanding this case for further findings on Yartzoff's claims of retaliatory employment practices, we cautioned Yartzoff that his evidence appeared to be weak, and that should his proof fail, "he may well suffer judgment for defense costs and attorneys' fees." Yartzoff v. Thomas, 809 F.2d 1371, 1378 (9th Cir. 1987).

On remand, Yartzoff offered no new evidence but merely repeated the same story he had told before. The district court's finding that Yartzoff had failed to show that his employment had been adversely affected was therefore not clearly erroneous.

B

We review de novo a district court's ultimate determination to dismiss pursuant to Rule 41(b). Johnson, 756 F.2d at 1465.

The relevant inquiry here is whether Yartzoff's employment was adversely affected. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Yartzoff, 809 F.2d at 1374-1375. The district court found that by failing to present new evidence on remand, Yartzoff failed to show that any of the actions complained of adversely affected his employment. Since we found no adverse affects the first time this case came up on appeal, we have no basis for reversing the district court on this issue now.

AFFIRMED.