Unpublished Disposition, 917 F.2d 566 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 917 F.2d 566 (9th Cir. 1990)

Mattye Faye FAULKNER, Plaintiff-Appellant,v.CITY OF LOS ANGELES, Defendant-Appellee.

No. 87-6483.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 1990.Decided Oct. 30, 1990.

Before FLETCHER, BOOCHEVER and WIGGINS, Circuit Judges.

MEMORANDUM* 

Mattye Faye Faulkner (Faulkner) appeals pro se the district court's judgment in favor of the City of Los Angeles (the City) in her Title VII employment discrimination suit. The district court concluded that the City articulated legitimate, non-discriminatory reasons for terminating Faulkner's employment. We affirm.

DISCUSSION

Faulkner claims that the court incorrectly concluded that she failed to show that (1) the City had discriminated against her; and, (2) the City's proffered legitimate, non-discriminatory reasons for firing her were pretextual. Regardless of whether Faulkner made out a prima facie case of discrimination under a disparate treatment theory, the City's reasons were not pretextual. The district court's finding of fact that Faulkner's knife assault on Jon Perica occurred1  was not clearly erroneous. The assault, in turn, supported the court's conclusion of law that the City had legitimate, non-discriminatory reasons for discharging Faulkner.

Faulkner claims she was denied due process by the City's alleged failure to provide process prior to depriving Faulkner of her constitutionally protected property rights in continued employment with the City.2  This claim, however, was not raised in the district court. Thus, Faulkner is precluded from raising the issue for the first time on appeal.

Faulkner claims another district court judge incorrectly concluded that because Faulkner's trial was completed, the court did not have jurisdiction to hear her motion to disqualify Judge Pfaelzer who presided at her trial. Although the district court erred by failing to rule on the motion because Faulkner's motion for a new trial was pending, there is no evidence of bias or prejudice in the record to justify disqualifying Judge Pfaelzer. To remand the motion to the district court would only unduly delay the disposition of this case.

Faulkner claims her trial counsel was incompetent and proffers this as a justification for requesting a new trial. No cases recognize ineffective assistance of counsel as a basis for a new trial in a civil context. The alleged lack of competency of Faulkner's counsel, therefore, does not justify a new trial.

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 9th Cir.R. 36-3

 1

Faulkner pointed out during argument that she was acquitted of the criminal charges resulting from the knife incident. The district court, however, was not bound by that determination because the criminal "beyond a reasonable doubt" measure of persuasion is higher than the civil "preponderance of the evidence" measure. In other words, although the jury in the criminal proceeding was not convinced "beyond a reasonable doubt" that the knife incident occurred, Judge Pfaelzer was convinced by a "preponderance of the evidence." See Standlee v. Rhay, 557 F.2d 1303, 1305 (9th Cir. 1977) (An acquittal is " 'an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.' ... Because of this difference in burdens of proof, an adjudication of the issues in a criminal case 'does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings.' ") (citations omitted)

 2

Faulkner also claims her due process rights to a fair trial were violated by Judge Pfaelzer's alleged bias and prejudice in favor of the City. This claim, essentially a variation on Faulkner's motion to disqualify Judge Pfaelzer (discussed below), is without merit. Faulkner, also, renewed her request in her briefs and at argument for appointment of counsel on appeal. A motion's panel of this court denied her request. Faulkner has ably presented her arguments. We conclude that her case would not be benefited by appointed counsel and accordingly deny her renewed request

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