Unpublished Disposition, 844 F.2d 791 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 791 (9th Cir. 1988)

Nancy S. BRADSHAW, Plaintiff-Appellant,v.ZOOLOGICAL SOCIETY OF SAN DIEGO, Defendant-Appellee.

No. 87-5971.

United States Court of Appeals, Ninth Circuit.

Submitted April 8, 1988.* Decided April 12, 1988.

Appeal from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding.



Nancy Bradshaw appeals pro se from a judgment entered in favor of defendant Zoological Society of San Diego (Zoo) after a bench trial on her employment discrimination claims. 42 U.S.C. §§ 1983, 2000e-2, 2000e-3 (1982).

Bradshaw first contends that the district court erred in upholding the magistrate's rulings on a number of discovery matters. The district court correctly reviewed the magistrate's orders under the clearly erroneous standard; Bradshaw's contrary contention is baseless. Fed. R. Civ. P. 72(a); 12 C. Wright & A. Miller, Federal Practice and Procedure Sec. 3076.5, at 37-38 (Supp.1987). The discovery orders directed toward Bradshaw required the production of evidence that was plainly relevant and were therefore entirely appropriate, as were the court's limitations on Bradshaw's overbroad discovery requests. We find no abuse of discretion. See Hatch v. Reliance Ins. Co., 758 F.2d 409, 416 (9th Cir.), cert. denied, 106 S. Ct. 571 (1985).

On the merits, Bradshaw's attempt to relitigate credibility issues in this court is totally unavailing. The district court applied the proper legal standard to Bradshaw's disparate treatment claim, rejecting it because the Zoo "articulate [d] legitimate and nondiscriminatory reasons for not hiring plaintiff," Excerpt of Record (ER) at 189, and Bradshaw failed to prove that these reasons were pretextual. See EEOC v. Inland Marine Indus., 729 F.2d 1229, 1234 (9th Cir. 1984). The district court also properly rejected her disparate impact claim, finding that her statistical evidence was "misleading" because any disparities in workforce were caused by societal factors rather than "any rule or policy" of the Zoo, ER at 186, and that " [t]he selection process ... was not discriminatory in ... effect." ER at 187; see Inland Marine, 729 F.2d at 1233. Finally, the district court found that Bradshaw failed to substantiate any of her discrimination theories, and that the Zoo's decisions not to hire her in 1969 and 1971 were not based on gender or on any other improper basis. There is ample evidence in the record to support the district court's findings on these issues; they are certainly not clear error. Fed. R. Civ. P. 52(a).

Bradshaw's remaining claims also lack merit. Indeed, all of the contentions she raises on this appeal are utterly frivolous. Moreover, her opening brief seriously mischaracterizes the record below in a grossly improper attempt to portray her appeal as meritorious. Appellees have been forced to expend substantial effort refuting these misrepresentations. See Appellee's Brief at 12 n. 17, 33 n. 36, 35 n. 37, 38 n. 39, 47 n. 47.

Under Federal Rule of Appellate Procedure 38, we have authority to award damages and single or double costs as a sanction for the bringing of a frivolous appeal. See Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir. 1984). Bradshaw has passed the California bar examination and should have known that her "claims of error are wholly without merit." Malhiot, 735 F.2d at 1137. Moreover, because she is proceeding pro se, she has been able to litigate this case out of her "back pocket," at essentially no cost to herself, while imposing substantial costs on the Zoo. Forcing the Zoo to bear the financial burden of its successful defense against the meritless claims of this litigious plaintiff1  would be a miscarriage of justice. We therefore award appellees their attorney's fees on this appeal. Within 30 days of the issuance of this Memorandum, appellees shall file an application setting forth in detail the fees reasonably incurred in defending the appeal. See 9th Cir.R. 39-1.6.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


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


The district court took judicial notice of the fact that Bradshaw has initiated 21 lawsuits on her own behalf