Unpublished Disposition, 872 F.2d 428 (9th Cir. 1985)

MEMORANDUM^** 

After a two-day bench trial, the district court concluded that the State of Arizona had not discriminated against Rashad Khalifa when a Caucasian male, rather than Khalifa, was promoted to the position of agricultural laboratory manager of the Arizona Commission of Agriculture and Horticulture. Khalifa appeals. We affirm.

* FACTS

Khalifa is a male citizen of the United States, an Egyptian and a Muslim. He was employed by the Arizona Commission of Agriculture and Horticulture. On February 1, 1985, the Commission announced an opening for the position of agricultural laboratory manager. This position required that an applicant have experience in gas and liquid chromatograph ("GC"), four years experience in chemical analysis and research, and one year experience in supervising a professional staff in an agricultural chemical laboratory. Experience in mast spectrophotography ("MS") was "highly desirable."

Four applicants, including Khalifa, were qualified, and subsequently interviewed and considered for the position. A hiring list was issued April 26, 1985. The job was offered to H.D. Harder. Harder declined the offer because he needed corrective eye surgery.

A second job announcement for the lab manager position was issued. The requirements for the job were identical to those listed in the prior announcement with one exception: MS experience was no longer "highly desirable" but mandatory.

Khalifa and Harder both reapplied for the job and were the only two candidates considered this time around. Again, the job was offered to Harder, and this time he accepted. Khalifa then filed a charge of discrimination with the Equal Opportunity Commission and complied with all jurisdictional prerequisites before filing a complaint for employment discrimination in the district court under 42 U.S.C. § 2000(e), et seq. (Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended).

II

ANALYSIS

On appeal Khalifa argues that the Commission's failure to offer the lab manager position to one of the three remaining candidates on the list of April 26, 1985, after Harder rejected the position, demonstrates the Commission's intention not to promote Khalifa. The argument is that the Commission must have discriminated against Khalifa because there was no other reason for holding the position open and seeking other applicants when the Commission already had three who were qualified.

This argument overlooks the fact that Khalifa was not excluded from the new list of qualified candidates. His name was on this list as well as the list of April 26, 1985, and a prior list. This circumstance, as the district court found, showed that Khalifa was consistently being considered for the lab manager's job. Khalifa was qualified for the job, but as the district court found, he could not get along with his subordinates. On the other hand, Harder, who was selected, not only was qualified for the job but had "glowing recommendations as to his ability to work well with others and his ability to run a laboratory." District court's Findings of Fact and Conclusions of Law, Khalifa v. Arizona, No. CIV86-0931 PHX CAM (D. Ariz. 1988).

The district court's findings of fact are not clearly erroneous. See Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). The district court did not err in concluding that Khalifa was not the victim of discrimination.

The State of Arizona seeks attorney fees and its costs on appeal as sanctions against Khalifa for frivolously appealing the district court's decision. See Fed. R. App. P. 38. An award of attorney fees and costs as a sanction for a frivolous appeal is within the discretion of the appellate court. De Witt v. Western Pacific R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983) (citing McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981)); Fed. R. App. P. 38.

We cannot say Khalifa's arguments are entirely without merit. Cf. De Witt, 719 F.2d at 1451 (citing Libby, McNeill, and Libby v. City National Bank, 592 F.2d 504 (9th Cir. 1978)). Accordingly, we decline to impose sanctions for a frivolous appeal.

CONCLUSION

The judgment in favor of the State of Arizona and against Khalifa is AFFIRMED. The State's request for sanctions for bringing a frivolous appeal is DENIED.