Percy D. Abrams, Plaintiff-appellant, v. Wilsona School District; Chester Calderira; Mary Gerard,asst. Superintendent; Maurice Kunkel; Frankdonaldson; Mike Brown, Defendants-appellees, 131 F.3d 145 (9th Cir. 1997)

MEMORANDUM^* 

Plaintiff/petitioner, Percy Abrams, appeals two decisions. He filed suit against his employer claiming wrongful discharge based on race and hostile work environment, also based on race.

The wrongful discharge claim was decided in favor of the employer pursuant to Federal Rule of Civil Procedure 50. The hostile work environment claim resulted in a hung jury and a new trial was ordered. At the commencement of the second trial, petitioner fired his attorney and the case was dismissed for failure to prosecute. Fed. R. Civ. P. 41(b). Petitioner appeals both these decisions.

The Rule 50 motion was properly granted because petitioner did not present specific, substantial evidence that his employer's legitimate, nondiscriminatory reason for firing him was a pretext for racial discrimination. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996).

Rule 41(b) allows a district court judge to dismiss a case sua sponte for failure to prosecute. Fed. R. Civ. P. 41(b). The judge's decision stands unless there is a clear error of judgment in the conclusion reached after weighing the relevant factors. In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). The District Court decision clearly analyzed the Eisen factors and gave them proper weight. We find no abuse of discretion.

We deny attorney's fees because there was an arguable basis to bring the appeal.

The decisions below are AFFIRMED.