Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 909 F.2d 1488 (9th Cir. 1985)

Ronald A. DUDLEY, Plaintiff-Appellant,v.COUNTY OF SANTA BARBARA, Defendant-Appellee.

No. 85-5725.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1990.Decided Aug. 6, 1990.

Before REINHARDT, LEAVY and RYMER, Circuit Judges.


MEMORANDUM* 

Ronald A. Dudley appeals pro se from an involuntary dismissal of his claim against the County of Santa Barbara ("County"). Dudley contends that the County refused to hire him in retaliation for a claim that he filed with the Equal Employment Opportunity Commission ("EEOC") against the City of Santa Barbara in 1975. At trial, Dudley presented two witnesses and several letters and declarations into evidence. He then rested his case. The County moved for an involuntary dismissal pursuant to Rule 41(b) for failure to state a prima facie case of retaliation. The district court granted the County's motion. We affirm.

Dudley applied for the position of Sheriff's Correction Officer with the County of Santa Barbara Sheriff's Department ("Sheriff's Department") on July 2, 1979. He was placed on an eligibility list. The Sheriff's Department selected him from the list as a good prospect for hire and began a routine background investigation. Although Dudley passed a written test, Undersheriff Laurence E. Marshall rejected his application on the basis of the results of a background investigation and a psychological examination. In his declaration, Marshall stated that the investigation showed that Dudley failed to explain truthfully why his application with the Contra Costa County Sheriff's Department had been rejected, that when he worked for American Patrol Service Dudley had no motivation, received a warning for mediocre work, would not have been promoted, and quit without giving notice. He also stated that Dudley intentionally refused to follow orders on several occasions while he was employed with the Santa Barbara City Fire Department, that he was fired for that reason, and that he lied to Dr. Kroes, a licensed psychologist, during his psychological exam. Marshall concluded that Dudley lacked the qualities needed to be a correction officer, specifically, the ability to give accurate and complete responses, honesty and truthfulness, reliability, dependability, motivation, willingness to obey orders and independence. He also faulted him for his alleged poor work performance and his alleged failure to give advance notice before quitting employment. On that basis, the County accordingly rejected Dudley's application for employment.1 

Dudley is a black male, In 1975, approximately four years before he submitted his application to the County, he had filed an EEOC claim against the City of Santa Barbara and the City of Santa Barbara Fire Department alleging employment discrimination on account of race. No information was presented concerning the outcome of that claim. Dudley had never previously worked for the County.

In the case at bar, Dudley filed a complaint with the California Fair Employment Practices Commission and the EEOC claiming that the County violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 and 2000e-e by refusing to hire him (1) because of his race and color and (2) in retaliation for his previous complaint of discrimination against the City of Santa Barbara and the City Fire Department. The EEOC issued a right to sue letter. In the district court, Dudley alleged both racial discrimination and retaliation in violation of Title VII, and claimed a loss of approximately $30,000 in lost salary and benefits. The County answered the complaint, then moved for summary judgment. Judge Consuelo B. Marshall granted partial summary judgment on March 5, 1984, as to Dudley's claim of discrimination because of race, color or national origin under 42 U.S.C. § 2000e-2, but reserved the issue of retaliation under Sec. 2000e-3.

A bench trial was held solely on the issue of the retaliation claim. Dudley presented two witnesses--his father and himself. He also introduced into evidence several exhibits. The County had several witnesses under subpoena who were present at the trial and could have been called by Dudley during his case-in-chief. However, he did not do so. At the close of Dudley's case, the County moved for involuntary dismissal under Rule 41(b) on the ground that Dudley had failed to show any facts relating to his retaliation claim which would have entitled him to relief. The court granted the County's motion to dismiss, and on January 15, 1985, the court entered the Dismissal and Findings of Fact and Conclusions of Law.

Dudley appeals the ruling of the district court that terminated the bench trial but does not contest the partial summary judgment order.

In order to establish a prima facie case of retaliation, a plaintiff must demonstrate: "1) that [he] was engaging in a protected activity, 2) that [he] suffered an adverse employment decision, and 3) that there was a causal link between the protected activity and the adverse employment decision." Ruggles v. California Polytechnic State University, 797 F.2d 782, 785 (9th Cir. 1986) (citing Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)). Once the plaintiff makes a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, non-discriminatory and non-retaliatory reasons for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). If the defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate that the explanation was a pretext or that discriminatory reasons more likely motivated the defendant's actions. Id. In the case at bar, the plaintiff failed at the first step--he failed to present a prima facie case of retaliation. Dudley alleged that the County retaliated against him for filing an EEOC claim against the City of Santa Barbara. While Dudley satisfied the first two elements of Ruggles by demonstrating that he was engaged in a protected activity and that he suffered an adverse employment decision, he did not introduce evidence establishing that there was a "causal link" between the filing of his EEOC claim against the City and the decision of the County not to hire him four years later. 797 F.2d at 785. The City of Santa Barbara and the County of Santa Barbara are two distinct governmental entities, and the plaintiff did not show how or why his claim of discrimination against the former affected his job application with the latter. Without such a showing, there was an insufficient link or causal connection to set forth a prima facie case of retaliation. See, e.g., Gunther v. County of Washington, 623 F.2d 1303, 1314 (9th Cir. 1979) ("The plaintiffs must also make a showing that links their conduct with the employer's action."), aff'd on other grounds, 452 U.S. 161 (1981); Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.) (same), cert. denied, 459 U.S. 1071 (1982); Miller v. Williams, 590 F.2d 317, 320 (9th Cir. 1979) ("Appellant's formulation omits a showing that reasonably links her conduct with the employer's action.").

Moreover, even if Dudley had been able to establish a causal link, the County set forth legitimate reasons to justify the granting of a rule 41(b) motion2  on the retaliation claim. The district court relied not only on the plaintiff's testimony and evidence presented in his case-in-chief, but also on the defendant's affidavits and declarations which set forth its reasons for not hiring Dudley. We have previously held that even where the plaintiff establishes a prima facie case of discrimination under McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), a rule 41(b) motion can be granted where the defendant presents "sufficient evidence in the form of affidavits, depositions and cross-examination of [the plaintiff's] witnesses to establish a reasonable, non-discriminatory reason for [its actions.]" Correa v. Nampa School District No. 131, 645 F.2d 814, 816 (9th Cir. 1981). In Correa, the plaintiff claimed that the school district's decision not to rehire her was motivated by racial discrimination and in retaliation for the exercise of her first amendment right of speech and association. Id. We upheld the grant of the rule 41(b) motion in that case because the adverse affidavits were sufficient to establish that the defendant's reasons were not a pretext for discrimination. Id.

Here, the declarations of Laurence Marshall, the Undersheriff for the Sheriff's Department, and of John Mimms, the detective who conducted the background investigation, reflect that reasons other than an effort to retaliate against Dudley motivated their determination not to hire him. Their reasons are set forth in the fact section of this disposition. As in Correa, the County's declarations were sufficient to establish that the defendant's stated reasons were not a pretext for discrimination. 645 F.2d at 816. Under these circumstances, the County was entitled to a Rule 41(b) dismissal on the retaliation claim. Id. It is important to note that we do not decide that Dudley engaged in any of the conduct the County believed he engaged in. The County may or may not have been mistaken in its evaluation of Dudley. However, it is enough that the County believed that the charges were true and based its decision not to hire Dudley on that belief.

Dudley further argues that he was disadvantaged in the presentation of his claims. He asserts in his reply brief that the "issue in this appeal is not whether the trial court correctly granted Appellee's Motion for Involuntary Dismissal. The issues are; did Appellant receive [sic] a fair trial; did all the evidence get presented in a proper manner, and does the preponderance of evidence support the decision." Dudley contends that he was unaware that he could have called the County's witnesses during his case-in-chief--he was under the impression that he was required to wait until the County called its witnesses before he could impeach their testimony. While we give pro se plaintiffs wide latitude in numerous respects, including the way in which we construe their pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), where the plaintiff has had a fair opportunity to present his case, we cannot reverse the district court simply because he was unaware of some of the rules governing the submission of evidence. Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986).

Finally, on appeal Dudley does not challenge the adverse summary judgment on his claim of racial discrimination. In his notice of appeal, Dudley merely stated that he appeals "from the order dismissing action pursuant to Federal Rules of Civil Procedure, Rule 31(b) entered in this action on January 15, 1985." That order, following a bench trial, dealt exclusively with the retaliation claim. His "statement of issues on appeal" does not raise the discrimination claim. In his brief, Dudley says that "The principle issue in this appeal is weather [sic] or not Defendant retaliated against Plaintiff in a manner prohibited by 42 U.S.C., section 2000e-3 of Title VII of the Civil Rights Act of 1964." The brief does not discuss the summary judgment proceedings, only the trial on the merits of the retaliation issue. Under these circumstances we conclude that only the retaliation claim is properly before us.3 

Accordingly, the district court's grant of the rule 41(b) motion is

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The parties agree that the County and the Sheriff's Department did not engage in any unlawful employment practices under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et. seq. in the areas of recruiting or testing. All manuals and procedures used in carrying out Dudley's background investigation are demonstrably related to job performance and justified by business necessity

 2

Rule 41(b) permits a district court to grant a motion for involuntary dismissal,

[a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of 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). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits Fed. R. Civ. P. 41(b). While the rule unerwent minor changes by an amendment effective August 1, 1987, these changes do not affect this appeal.

 3

We note, however, that Dudley has suggested no reason why the district judge's partial summary judgment ruling was erroneous

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