Unpublished Disposition, 919 F.2d 144 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 144 (9th Cir. 1990)

Abdalla EL SAFI, Plaintiff-Appellant,v.CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, et al.,Defendants-Appellees.

No. 89-15823.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 9, 1990.* Decided Nov. 23, 1990.

Before CHAMBERS, ALARCON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Abdalla El Safi (El Safi) appeals, pro se, from the dismissal, pursuant to Fed.R.Civ.Pro. 41(b), of his employment discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000h, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 and the Civil Rights Act of 1871, 42 U.S.C. § 1983, against the California Department of Food and Agriculture (CDFA) and several of its employees.

El Safi contends that the judgment should be reversed on the following grounds: (1) the district court erred in its findings of fact that El Safi lacked communication skills; (2) the district court erred in its determination that he was not a credible witness; (3) the district court abused its discretion in admitting "irrelevant" evidence of El Safi's six failed national boards veterinarian examinations and a previous finding by the CDFA in 1980 that he was unqualified for the same position; (4) the district judge "did not treat him in an objective-fair manner;" and (5) El Safi's trial counsel failed to request a jury trial and to call key witnesses to corroborate his testimony. We disagree and affirm.

PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

El Safi is a black, Sudanese, Moslem male who was born on January 1, 1937. El Safi received a degree of Doctor of Veterinary Medicine from the University of Belgrade, Yugoslavia, on October 19, 1966, and a Doctorate Degree in Veterinary Medicine from the Ludwig Maximillian University in Munich, West Germany, on July 27, 1973. On or about June 30, 1982, El Safi applied for employment with CDFA as a "Veterinary Medical Officer" (VMO). At the time of his application for employment El Safi was approximately 45 years old.

On July 13, 1982, a two-member CDFA Qualifications Appraisal Panel (QAP), which consisted of Dr. Charles A. Lamb and Diane Jones-Scheff, orally examined El Safi for three classifications: (1) VMO--Animal Health, (2) VMO--Meat Inspection, and (3) VMO--Pathology. The circumstances of these oral examinations form the basis for El Safi's discrimination claims.

CDFA routinely administers the QAP oral examinations for a variety of job classifications. During the QAP oral examinations, all candidates for a particular classification must answer a series of patterned questions. The failing grade is a "65." Candidates who pass the oral examinations receive grades ranging from "70" to "99." El Safi received a passing grade of "75" on each of the three VMO oral examinations. Under the California Rule of Three Ranks, an individual cannot be hired unless he or she is within the top three ranks. An individual in a lower rank cannot be hired until individuals in the higher ranks are removed from the list by hiring, withdrawal or termination of eligibility. El Safi's score on July, 1982, VMO examinations placed him in the fifth rank. He was not hired.

On April 24, 1989, the district court granted CDFA's motion to dismiss pursuant to Rule 41(b). Findings of Fact and Conclusions of Law were entered on May 17, 1989.1  The district court found that although El Safi had established a prima facie case under Title VII, ADEA, and Section 1983, CDFA had presented legitimate reasons for its actions which El Safi failed to show were pretextual.

DISCUSSION

El Safi challenges the district court's factual findings that he lacked communication skills which caused him to believe mistakenly that he was a victim of discrimination. The district court determined this matter pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

Rule 41(b) provides in pertinent part:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief.... If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).

Fed. R. Civ. P. 41(b). "The motion may be granted even if the plaintiff has made out a prima facie case, provided the court is convinced that the evidence preponderates against the plaintiff." Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985); See Correa v. Nampa School District, 645 F.2d 814, 816 (9th Cir. 1981) (defendant has "presented sufficient evidence in the form of affidavits, depositions and cross-examination of [plaintiff's] witnesses to establish a reasonable, non-discriminatory reason for her discharge").

As required by Rule 41(b), we must review the district court's finding of facts in a nonjury case under a "clearly erroneous" standard pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Johnson v. United States Postal Service, 756 F.2d at 1464. Rule 52(a) provides:

Findings of facts, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

Fed. R. Civ. P. 52(a) (emphasis added). In reviewing a Rule 41(b) ruling, " ' [a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Vasconcelos v. Meese, No. 88-5884, slip op. 6811, 6814-6815 (9th Cir., July 6, 1990) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). "Even where it is possible that we might have weighed the evidence differently from that of the district court, and such is not the case here, we will not reverse the lower court's finding if its 'account of the evidence is plausible in light of the record viewed in its entirety.' " Mitchell v. Office of Los Angeles County, 805 F.2d 844, 846 (9th Cir. 1986) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).

We find ample support in the record for the district court's conclusion that El Safi's communication skills caused him to believe mistakenly that he was a victim of discrimination. We do not have "a definite and firm conviction that a mistake has been committed." Vasconcelos, No. 88-5884, slip op. at 6814-6815.

The district court supported its finding that El Safi misinterpreted the statements of the defendants with several examples. El Safi testified that the CDFA deliberately delayed sending him his test scores. The district court found that the delay was not deliberate. The record shows that El Safi received his scores late because he had changed his address. The results were sent to his old address. Shamim Khan, who is a representative for CDFA, testified that the results were available to the public one week after the examinations. El Safi could have learned of the examination results by a telephone call or visit to the office. Moreover, the delay had no effect on his availability for hiring. El Safi's name was on the VMO lists. Had he been within the top three ranks, he would have been eligible for employment even if he received his scores late.

El Safi testified that during the July 1982 oral examination, Ms. Jones-Scheff asked him the question: "Tell us about yourself." He asserts that this question was intended to elicit information regarding his national origin and age. However, Ms. Jones-Scheff testified that the question was a standard "ice breaker" and not intended to elicit information about El Safi's race, age or national origin. The record reveals that El Safi acknowledged that the QAP never directly asked him about his race, age or national origin during the QAP oral examination. The district court's finding that this question is not evidence of discriminatory intent is not clearly erroneous.

El Safi also testified that he has been discriminated against because he is a Moslem. He testified that during his QAP oral examination Dr. Lamb asked him a question about the preparation of bacon. El Safi asserts that this question was evidence of religious discrimination because it was intended to elicit information about his Moslem faith. Shamin Khan, who is a Moslem, testified that she investigated El Safi's complaint regarding the inquiry concerning the preparation of bacon, but found no discriminatory intent or effect because all applicants for the VMO Meat Inspection Job are asked questions about the preparation of meat. The record reveals that El Safi acknowledged that the QAP panel never asked him direct questions about his religion. The trial court's finding that the question concerning the preparation of bacon is not evidence of religious discrimination is not clearly erroneous.

El Safi testified that the QAP panel refused to consider his resume and a letter of recommendation from Dr. George West. The standard procedure during a QAP examination, however, is to assess the information contained in the written application and presented orally by the candidate. Moreover, the panel gave El Safi a full opportunity to discuss his resume and Dr. George West's letter of recommendation.

As further proof of his claim of discrimination, El Safi testified that Dr. Lamb did not keep his promise to hire El Safi as a short-term Meat and Food Inspector for the fall of 1982. The Chief of CDFA's Meat and Poultry Inspection Branch testified that from 1978 to 1985 such a position did not exist due to budgetary constraints and even if such a position did exist, Dr. Lamb did not have hiring authority. The district court found that Dr. Lamb did not promise to hire El Safi but merely gave him a job description, salary information and suggested that he file an application.

The district court's finding that El Safi misinterpreted the statements and actions of CDFA's representatives is not clearly erroneous.

II. The District Court's Credibility Determinations

El Safi also attacks the district court's determination that Ms. Diane Jones-Scheff testified truthfully concerning the manner the QAP examinations are administered. El Safi contends that the district court credited Ms. Jones-Scheff's testimony even though she "testified that she did not remember the specifics of the incidents concerned, but instead testified as to what she usually did or thought she would have done." Appellant's Opening Brief (AOB) at 2.

" 'Credibility determinations are insulated from appellate review.' " Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir. 1988) (quoting Johnson v. United States Postal Service, 759 F.2d 1461, 1464 (9th Cir. 1985); See Sutton v. Atlantic Richfield Co., 646 F.2d 407, 412 (9th Cir. 1981) (citing Nuelson v. Samuelson, 293 F.2d 454, 460 (9th Cir. 1961) ("trial court's appraisal of the credibility of witness is to be accepted without challenge."). The Supreme Court has also noted that "when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

El Safi testified that Ms. Jones-Scheff lacked the skills to properly evaluate him, because she is less educated than he. The district court found that Ms. Jones-Scheff, a black woman, was sensitive to discriminatory employment practices in hiring and highly qualified to administer QAP examinations. Ms. Jones-Scheff is trained to conduct QAP examinations and to ensure that no illegal questions are asked during the oral examinations. She has administered oral exams to 50 to 60 VMO applicants prior to administering the test to El Safi. The record supports the court's credibility findings.

El Safi argues that the trial court "did not treat him in an objective-fair manner." AOB at 2. "We review the district judge's conduct of trial under an abuse of discretion standard." Hansen v. C.I.R., 820 F.2d 1464, 1467 (9th Cir. 1987). "The standard for reversal on the basis of judicial misconduct during trial is whether the trial was unfair." Id. El Safi must demonstrate that "the judge's conduct reflected a disposition, based on extrajudicial sources, to treat him unfairly.... Because a trial judge has wide discretion in conducting a trial, a clear and precise showing of prejudice must be made to demonstrate judicial misconduct, particularly in noncriminal trials." Id.

El Safi has failed to show the degree of prejudice required to render his trial unfair. El Safi contends that the judge was unfair because the "apparently harsh comments of the Court toward his person was unjustified." AOB at 3. His contention is based primarily on the district court's conclusion that he was not credible. In his brief, El Safi objects to the court's comment he had "puffed" his resume.2  The district court's comment reflects its assessment of the evidence. It does not show bias or prejudice against El Safi.

A. Admissibility of Evidence of Failure to Pass Six Board Exams and a 1980 QAP Examination.

El Safi challenges the district court's overruling of his objections on relevancy grounds to opposing counsel's questions regarding (1) his six unsuccessful attempts to pass the National Board Veterinarian Examination and (2) the fact that in 1980 an entirely different panel of state examiners had conducted an evaluation similar to that conducted in 1982 by Dr. Lamb and Ms. Jones-Scheff and had found him unqualified for a VMO position.

We review the district court's evidentiary rulings under an abuse of discretion standard. Miller v. Fairchild Industries, Inc., 876 F.2d 718, 723 (9th Cir. 1989), cert. denied, 110 S. Ct. 1524 (1990); Ortiz v. Bank of America National Trust and Savings Assoc., 852 F.2d 383, 389 (9th Cir. 1988).

The district court ruled that it would permit CDFA to impeach El Safi's testimony regarding his qualification with evidence that he failed six Board exams. The district court also permitted CDFA to question El Safi concerning the 1980 QAP rating to rebut El Safi's testimony that he received low scores on the VMO examinations because the 1982 examination panel discriminated against him.

Rule 611 of the Federal Rules of Evidence provides that " [c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness...." The district court did not abuse its discretion in allowing CDFA to impeach El Safi during cross-examination with questions regarding his failure to pass six National Board Veterinarian examinations and his failure to pass a previous QAP examination in 1980. Both lines of questioning were appropriate to show that El Safi's testimony on direct was not credible. See Harris v. United States, 371 F.2d 365, 367 (9th Cir. 1967) (Scope of cross-examination of witness on matters relevant to his credibility is broad).

Rule 401 of the Federal Rules of Evidence defines relevant evidence as " [e]vidence having the tendency to make the existence of any fact more or less probable than it would be without evidence." Proof of El Safi's failures to pass six written National Boards and a previous QAP oral examination tended to show that his testimony concerning his skills or qualification was not believable. In addition, the evidence tends to show that El Safi's lack of qualification, not discrimination, resulted in his low scores on the QAP examinations and his failure to obtain employment with CDFA. The district court did not abuse its discretion in ruling that cross-examination on this subject matter was relevant.

B. Admissibility of "A Document"

El Safi claims that the district court erred in admitting into evidence "a document." AOB at 2. El Safi has failed to identify this document. Instead, he refers to the reporter's transcript on pages 156-172. The only document mentioned in the cited portion of the transcript is State Exhibit GG. This document was never offered nor received into evidence.

V. Neglect of Counsel As Ground For Reversal

El Safi contends for the first time on this appeal that the judgment should be reversed because his attorney failed to move for a jury trial and did not call witnesses to corroborate El Safi's testimony. We decline to "consider an issue raised for the first time on appeal." Bolker v. C.I.R, 760 F.2d 1039, 1042 (9th Cir. 1985).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 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

 1

As a final ground on appeal, El Safi claims that the trial court erred in failing to modify the Findings of Fact and Conclusions of Law, prepared by counsel for Appellees. El Safi's trial counsel objected to Findings 113 and 114. Both findings relate to the question whether El Safi had established a case under the disparate impact theory of discrimination. El Safi does not argue, however, that the district court erred in concluding that the record does not demonstrate disparate impact discrimination. We do not consider this contention because any error in the findings of fact and conclusions of law regarding disparate impact could not affect our disposition of this matter

 2

During trial, El Safi was shown a copy of his job application which stated that he had worked for CDFA for "1 year and 12 months," when in fact he had volunteered for just 1 year. While on the stand he was questioned by opposing counsel regarding this inconsistency. He made no attempt at an explanation. He contends for the first time on appeal that there were two versions of his application, a "corrected" and "non-corrected" copy. El Safi and his counsel had plenty of opportunity during trial to bring this fact to the court's attention, but they failed to do so. We cannot consider facts outside the record on appeal. Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985)