Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1985)

MEMORANDUM

Bell appeals from the district court's dismissal of his age discrimination and retaliation complaint. The district judge had jurisdiction under 29 U.S.C. § 633a(c). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Dismissal of plaintiff's case pursuant to Fed. R. Civ. P. 41(b) is reviewed under the same standard applied to judgment following a bench trial. Miller v. Fairchild Industries, Inc., 885 F.2d 498, 503 (9th Cir. 1989), cert. denied, 110 S. Ct. 1524 (1990). The district court's findings of fact are reviewed for clear error and legal conclusions are reviewed de novo. Id.

Bell argues that the Postal Service violated the Age Discrimination and Employment Act, 29 U.S.C. § 633a, because Postmaster Harris treated him differently because of his age. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990) (describing disparate treatment theory). He contends that the district judge erred by overlooking "direct evidence of age motivated animus against older workers." Bell points out that numerous witnesses testified that Harris harassed older employees and even encouraged them to retire. However, on cross-examination, Bell admitted that the adverse treatment may have been linked to Harris's concerns about the employees' productivity. Another management employee confirmed that Harris had been concerned with productivity. Finally, there was evidence that Harris did not treat all older employees badly, and harassed employees regardless of their age.

The district judge did not clearly err by finding that there was no direct evidence of discrimination. First, the judge may have rejected Bell's evidence simply because she found the witnesses not credible, and we will not review the trial judge's credibility determinations on appeal. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). In addition, assuming that the district judge believed the testimony, she could have concluded that Harris's behavior was not motivated by employees' age, but by their productivity. Generalized negative comments about older workers do not compel a finding of discrimination. See Sutton v. Atlantic Richfield Co., 646 F.2d 407, 410 (9th Cir. 1981) (employee testified that supervisor wanted to replace him with a "well-qualified younger man," but court concluded that even if the judge had credited this testimony, it did not necessarily indicate discriminatory animus).

Bell also argues that he presented sufficient circumstantial evidence of discrimination to defeat the Postmaster General's motion for dismissal at the close of Bell's case. However, even assuming that Bell established a prima facie case of discriminatory denial of promotion, we agree with the district judge that the Postmaster General established a legitimate, nondiscriminatory reason for the employment decision. See Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir. 1981) (Douglas) (describing shifting burdens of proof); Correa v. Nampa School District No. 131, 645 F.2d 814, 816 (9th Cir. 1981) (testimony elicited on cross-examination can meet defendant's burden of proof).

Postmaster Gennaro testified that he did not promote Bell to Kent Postmaster, and instead selected applicant Cummings, because she was most qualified for the position. Gennaro pointed out that Cummings had glowing references, a great deal of relevant work experience, and an impressive background. This testimony satisfied the Postmaster General's burden of giving a nondiscriminatory explanation for the decision. Bell did not counter Gennaro's testimony with evidence that age was a determining factor in the decision to promote Cummings. See Douglas, 656 F.2d at 531. In fact, Bell admitted that he did not believe that Gennaro had discriminated against him by not selecting him.

Bell apparently believes that he was denied the promotion because Postmaster Harris gave him an unfairly low performance evaluation. However, the district judge found that the performance evaluation was not a determinative factor in the denial of the promotion. In addition, Bell failed to even raise an inference that he was given a poor evaluation because of his age. See id. Bell did not present convincing evidence that younger employees, whose qualifications and performance were identical to Bell's, were treated more favorably than he was. Rather, after hearing all of Bell's evidence, the district judge found that "Harris placed unreasonable demands on all employees without regard to their age."

There is no evidence in the record to compel the conclusion that Postmaster Harris discriminated against Bell because of his age. See United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988) (no clear error unless appellate court is left with the "definite and firm conviction" that a mistake has been made). We therefore affirm the district judge's dismissal of Bell's age discrimination complaint.

Bell also contends that Harris retaliated against him for filing an EEOC complaint, and as a result of this retaliation he was "constructively discharged" from his position as supervisor. To establish a prima facie case of retaliation, Bell must show that: "(1) he engaged in activity protected by Title VII; (2) the employer made an adverse employment decision; and (3) a causal connection existed between the two." Johnston v. Horne, 875 F.2d 1415, 1421 (9th Cir. 1989).

Bell testified that on December 12, 1985, he informed Harris that he planned to talk to the EEOC. Bell reported that Harris was "hostile" following this confrontation, and pointed to an increase in job responsibilities, and disciplinary actions taken by Harris as examples of this hostility. Other workers testified that Harris engaged in a pattern of adverse treatment of any workers who filed EEOC complaints.

Despite this testimony, the trial judge found that there was no causal link between the Bell's participation in the protected activities and the adverse treatment. The judge was persuaded by Bell's testimony that his working relationship with Harris was difficult from the start. The judge therefore found that "there was insufficient evidence to establish [that Bell] was treated differently after he filed an EEO complaint."

The district judge's finding that there was no evidence of retaliation was not clearly erroneous. Bell's litany of complaints reveals poor working conditions both before, and after, he threatened to complain to the EEOC. Furthermore, even assuming that the district judge found Bell's witnesses credible, their testimony that Harris generally engaged in "a pattern of adverse treatment" of those who complained to the EEOC, does not alone necessarily establish a causal link in this particular instance.

AFFIRMED.