Unpublished Disposition, 930 F.2d 27 (9th Cir. 1986)

MEMORANDUM^** 

I. OVERVIEW.

This is an employment discrimination case. Appellant Edwards claims appellee EEOC discriminated against him on the basis of race and sex in violation of Title VII of the Civil Rights Act. This claim was based on his dismissal from employment at the EEOC. At the completion of Edwards' presentation of his case-in-chief, the EEOC moved for a Rule 41(b) involuntary dismissal, claiming that Edwards failed to demonstrate a prima facie case. The district court granted the motion, finding that Edwards had failed to prove that he was qualified for his position or that his dismissal was the result of any discriminatory intent. Edwards appeals.

II. FACTS AND PROCEEDINGS BELOW.

Edwards is a black male veteran who holds a masters degree from the University of Southern California in Public Administration. On September 28, 1978, the EEOC hired Edwards as an Equal Opportunity Specialist, GS-7, temporarily assigned to the Los Angeles district office.

Initially, Edwards was only assigned clerical tasks, but in August, 1979, he was given his first assignment. He was expected to conduct predetermination interviews for a class action known as Alaniz Cannery litigation. It quickly became apparent that Edwards had little understanding of the application of Title VII of the Civil Rights Act, a necessary element of his job. Edwards was described in an internal memo as lacking "the rudimentary skills" to perform his job. After unsuccessful attempts to train him, Edwards was given written notification of his termination effective September 21, 1979.

Edwards filed a formal complaint on September 9, 1979. An investigative hearing was held on October 10-11, 1979, in which the complaint examiner determined that Edwards "did not demonstrate that he had been unlawfully discriminated against in his employment on the basis of his race, color or sex."

The Commission issued a final decision on September 28, 1984, adopting in full the recommendation of the complaint examiner. Edwards filed suit on November 2, 1984.

A trial was held on March 11, 1986, before the Honorable William H. Orrick of the United States District Court for the Northern District of California. Edwards presented his case-in-chief after which the EEOC moved for an involuntary dismissal pursuant to Rule 41(b), FED.R.CIV.PROC. The basis for the motion was that Edwards had not established a prima facie case of disparate treatment. The district court granted the motion and Edwards appealed. We affirm.

III. ISSUE PRESENTED.

Did the district court properly grant defendant's motion for involuntary dismissal based upon its determination that plaintiff had failed to establish his prima facie case?

IV. STANDARD OF REVIEW.

EEOC cites Seventh Circuit law maintaining that the standard of review for Rule 41(b) involuntary dismissals is the "clearly erroneous" standard. The Ninth Circuit, in Pejic v. Hughes Helicopter, 840 F.2d 667 (1988), does, in fact, provide roughly the same level of scrutiny. "Findings of fact are reviewed on the 'clearly erroneous' standard, findings of law are reviewed de novo." Id. at 671.

V. ANALYSIS.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) lists the factors to be used to analyze a Title VII discrimination claim. A plaintiff must show: (1) he is a member of a racial minority; (2) he was qualified for the job he held; (3) despite his qualifications, he was terminated; and (4) he was replaced by a person possessing no better qualifications. Additionally, the plaintiff must establish discriminatory intent.

The district court found that Edwards was unable to prove he was qualified for the job. "The evidence that plaintiff lacked the requisite skill was ample." (Findings of Fact, Conclusions of Law, p. 4.) The court pointed to numerous instances where Edwards demonstrated minimal understanding of the position. Moreover, Edwards was unable to prove any discriminatory intent on the part of the EEOC. Edwards simply did not make out a prima facie case. In fact, the district court noted that Edwards' counsel had conceded this point. "During her argument opposing the motion for involuntary dismissal, plaintiff's counsel stated that whatever evidence of discrimination was needed to fill out a prima facie case would be obtained through cross-examination of defendant's witnesses." Id. at 7. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).

VI. CONCLUSION.

The district court applied the appropriate McDonnell Douglas test and found elements lacking on the facts of this case. First, the court found abundant evidence that Edwards lacked the necessary qualifications for the job. Secondly, Edwards was unable to prove in his case-in-chief any evidence of discriminatory intent. The district court's decision was based on substantial factual evidence and cannot be found to be "clearly erroneous."

The judgment of the district court is AFFIRMED.