872 F2d 428 Lowry v. Freymiller Trucking Inc

872 F.2d 428

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Lynda LOWRY, Plaintiff-Appellant,
FREYMILLER TRUCKING, INC., Defendant-Appellee.

No. 88-1867.

United States Court of Appeals, Ninth Circuit.

Submitted* March 16, 1989.
Decided April 13, 1989.


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Lynda Lowry appeals pro se the district court's dismissal of her Title VII action against her former employer, Freymiller Trucking ("Freymiller"). We affirm.


Lowry was employed by Freymiller from July 1982, until she resigned her employment voluntarily on February 10, 1983. On February 19, 1983, she was rehired by Freymiller and dispatched as lead driver on a delivery run. During the trip problems developed between Lowry and her co-driver, Mike Wilson. Each driver complained to company officials about the conduct of the other. Ultimately, Lowry left Wilson at a motel in Phoenix, and completed the delivery alone. During the delivery, Lowry allowed her daughter to sit in the truck. It is disputed whether Lowry's daughter actually rode in the truck in violation of company rules.


After completing the trip, Lowry was dispatched on a delivery to Washington, D.C. In Oklahoma City she was teamed with another driver. Lowry was unhappy that she had not been named lead driver on this trip, and had a series of acrimonious conversations with Freymiller officials, during one of which she stated she would file sex discrimination charges against Freymiller. Lowry was discharged on March 4, 1983.


Lowry filed suit in district court, contending that her demotion from lead driver and the termination of her employment constituted unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e. Lowry also made several state law claims: (1) her termination violated express and implied promises not to terminate her employment except for good cause; (2) her termination violated the implied covenant of good faith and fair dealing; (3) Freymiller had attempted to prevent her from obtaining new employment by making false statements to prospective employers in violation of California law.


The district court ruled that the evidence in the case did not demonstrate that sexual discrimination played any part with regard to Freymiller's decisions concerning Lowry. Further, the district court found that the conduct of the plaintiff justified Freymiller's decision to terminate Lowry. In Title VII cases a finding on discriminatory intent is a question of fact and reviewed under the clearly erroneous standard. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); Jauregui v. City of Glendale, 852 F.2d 1128, 1131 (9th Cir.1988). Questions of law are reviewed de novo. Jauregui, 852 F.2d at 1131.


The Supreme Court has established a three-part test for Title VII claims. A Title VII plaintiff bears the initial burden of establishing a prima facie case. The burden of production then shifts to the defendant to articulate some legitimate nondiscriminatory reason for its action. If the defendant carries this burden, the plaintiff must prove by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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We assume arguendo that Lowry successfully established a prima facie case of discriminatory treatment. However, her claim still must fail. Lowry failed to follow dispatch instructions by abandoning her co-driver in Phoenix without authorization and by making an unauthorized detour back to Phoenix. Lowry also demonstrated insubordinate behavior by refusing to complete her delivery and by repeatedly hanging up during telephone conversations with her supervisor. Furthermore, Lowry failed to report to Bakersfield to participate in the company's investigation to determine whether disciplinary action should be taken against her because of her violation of the unauthorized passenger rule1 and her refusal to follow dispatch instructions. Freymiller met its burden of producing evidence to show it acted for a legitimate, nondiscriminatory reason by pointing to Lowry's conduct during the two trips undertaken for the company during her second period of employment.


We have suggested, without deciding, that the appropriate standard for reviewing the district court's conclusion at the third stage of a discriminatory treatment case, proving that an employer's proffered explanation for differential treatment is pretextual, is subject to de novo review. Atonio v. Wards Cove Packing Co., 827 F.2d 439, 443 (9th Cir.1987), cert. granted, 108 S.Ct. 2896 (1988). Here, we conclude that Lowry failed to prove by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination.


Lowry argues that she was improperly denied a jury trial. We disagree. She was not entitled to a jury trial on her Title VII claim. See Great American Fed. Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 375 (1979). Lowry's attorney waived the right to a jury trial on the pendent state law claims.


Lowry also contends that the district court erred in improperly failing to allow the introduction of evidence and in improperly questioning witnesses and that Freymiller failed to produce relevant information. After due consideration, we determine that these contentions are without merit.


Lowry's state law causes of action were properly dismissed. Because Freymiller established a legitimate reason for its actions with regard to Lowry, the state law claims based on implied or explicit contractual provisions permitting Freymiller to dismiss her only for good cause must fail. Our examination of the record reveals no evidence that would support Lowry's claim that Freymiller prevented or attempted to prevent her from obtaining new employment.


Finally, Lowry suggests that her counsel failed to represent her properly. Generally, a plaintiff in a civil case has no right to effective assistance of counsel. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985). Although under certain circumstances due process concerns may give rise to a right to the effective assistance of counsel in a civil action, see Lassiter v. Department of Social Servs., 452 U.S. 18, 27-32 (1981), there are no circumstances sufficient to trigger such a due process requirement in this case.




The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. 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 Ninth Circuit Rule 36-3


According to the records before us, however, the trial court did not expressly resolve the contradictions in the parties' testimony as to whether Lowry violated Freymiller's unauthorized passenger rule because it is not clear whether Lowry allowed her daughter to ride in the truck or sit in the truck at the delivery site and whether both acts can be construed as a violation of the rule