Unpublished Disposition, 872 F.2d 429 (9th Cir. 1986)

MEMORANDUM^** 

Pro se plaintiff Louella Odom sued her former employer, the San Francisco Newspaper Agency (SFNA), claiming racially discriminatory treatment in her employment and discharge in violation of 42 U.S.C. § 1981 (1982). After a one and one-half day bench trial, the district court held that the SFNA neither subjected her to a racially hostile work environment nor based her discharge upon racially discriminatory motives. Odom appeals. She alleges that the district court erred in finding that defendants did not discriminate against her. She also contends that the district court erred in admitting the arbitrator's decision into evidence and in denying her motions for appointment of counsel. Findings of fact are reviewed for clear error. See Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). The district court's refusal to appoint counsel is reviewed for abuse of discretion. See Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1318 (9th Cir. 1981).

A. Odom first alleges that the district court erred in finding that the SFNA had a legitimate, non-discriminatory reason for firing her. She also contends that the district court incorrectly concluded that the SFNA did not discriminate in its promotion policies.

The district court had ample evidence before it to conclude that Odom's termination was not racially motivated. The court found that she was fired for disobeying her supervisor's instructions on two occasions; first on April 13, 1981, and second, on July 10, 1982. Odom acknowledged that her second refusal to follow her supervisor's instructions constituted insubordination. See Reporter's Transcript 1-6, 1-15. She also was aware that such behavior would constitute grounds for dismissal. In fact, Odom had been warned, after the first insubordinate act on April 13, 1981, that a repeated occurrence could lead to her termination. See CR 40, Exhibit BB (Employee Warning Notice, April 13, 1981).

Nor did the district court err in finding that the SFNA did not discriminate against Odom in its promotion practices. The district court heard testimony from employees and supervisors, who stated that job promotion notices were posted in the work areas and that this information was available to Odom. This finding, based in part on the district court's determination of the credibility of these witnesses, was not clearly erroneous. See Anderson, 470 U.S. at 575 (factual findings based upon credibility determinations, unless "internally inconsistent, can virtually never be clear error").

B. Odom also argues that the district court erred in finding that she was not subjected to a racially hostile environment. Assuming arguendo such a claim can be brought under section 1981,¹  Odom had the burden of showing that the SFNA created "a discriminatory and offensive work environment 'so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.' " Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982), quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972). Accord Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981). She was also required to show that incidents of racial hostility were more than casual or infrequent, and that the employer was, or should have been, aware of their occurrence and failed to take any corrective action. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421-22 (7th Cir. 1986).

The district court concluded that even if Odom had been subjected to racial slurs or jokes, "they were nothing more than casual and isolated and were done not be management but by fellow employees." Memorandum and Opinion at 10. Moreover, Odom testified that she "never complained to management or gave management an opportunity to take steps to stop it." Id. Our review of the record confirms the district court's finding. These few incidents, although unfortunate, do not amount to employment discrimination. It is unrealistic to expect an employer to be aware of such isolated events. Hunter, 797 F.2d at 1421. Nor is it practical to expect an employer to purge all racially offensive speech from the workplace.

C. Odom next challenges the district court's admission of the arbitrator's decision into evidence. The admission of an arbitrator's opinion is consistent with "the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices." Alexander v. Gardner-Denver Co., 415 U.S. 36, 59 (1974).

D. Odom also appeals the district court's denial of her motions for appointment of counsel. In order to establish the need for counsel, the district court must consider "(1) the plaintiff's financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." Bradshaw, 662 F.2d at 1318. The district court rejected Odom's first motion for appointment of counsel on February 28, 1986, finding that she failed to demonstrate she had made any efforts to retain counsel. Her second motion was rejected because the district court concluded that Odom's claim lacked merit.

Neither refusal constituted an abuse of discretion. As to the first motion, it is clear that Odom failed to demonstrate what efforts, if any, she made to secure counsel. As to the second motion, it was not inappropriate for the district court to base its finding on the results of Odom's arbitration hearing. The independent arbitrator reached his conclusions after a lengthy and exhaustive hearing. The arbitrator concluded that Odom's claims, while not entirely frivolous, lacked merit. This was an appropriate basis for denying Odom's second motion for appointment of counsel.

E. Finally, Odom contends that certain excerpts from the arbitration transcripts contradict the district court's findings, and therefore asks us to consider them for purposes of this appeal. Because this evidence was not before the district court, we cannot consider it on appeal. Fed. R. App. P. 10(a) (record on appeal shall consist of "original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court"). Nor can we consider the district court's refusal to admit the transcripts, since Odom did not raise this issue on appeal. Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988) (claims not addressed in appellant's briefs are deemed abandoned).

AFFIRMED.