NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ISABELLE BICHINDARITZ, No. 12-35405
Plaintiff - Appellant, D.C. No. 2:10-cv-01371-RSL
v.
ORDER AND MEMORANDUM*
UNIVERSITY OF WASHINGTON,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted October 8, 2013
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
Plaintiff Isabelle Bichindaritz appeals the district court’s entry of judgment
in favor of the University of Washington (“University”) after a bench trial in
Bichindaritz’s employment action. Bichindaritz alleged gender discrimination in
violation of Title VII. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
review the district court’s finding for clear error, Rios v. Bd. of Regents of Univ. of
Ariz., 811 F.2d 1248, 1249 (9th Cir. 1987), and we affirm.
The district court’s finding that gender was not a motivating factor in the
University’s decision to deny Bichindaritz tenure was not “illogical, implausible,
or without support in inferences that may be drawn from the facts in the record.”
McCormack v. Hiedeman, 694 F.3d 1004, 1018 (9th Cir. 2012) (internal quotation
marks omitted) (describing clear-error standard). Numerous witnesses testified
that Bichindaritz’s inconsistent teaching performance and lack of collegiality were
long-standing problems; the district court’s decision to give credence to that
testimony was not clearly erroneous. See Anderson v. City of Bessemer City, 470
U.S. 564, 575 (1985) (stating that a trial judge’s decision to believe “coherent and
facially plausible” testimony “can virtually never be clear error”). In addition,
several individuals with firsthand knowledge of Bichindaritz’s application for
tenure testified that nobody had discriminated against Bichindaritz because of her
gender. Therefore, the district court did not clearly err in finding that “lack of
collegiality” was not a pretext for discrimination. Cf. Lam v. Univ. of Haw., 40
F.3d 1551, 1566 n.27 (9th Cir. 1994) (“The search committee members uniformly
stated that their decisions were not motivated by impermissible bias; the [district]
court, assessing their credibility and exercising its judgment, chose to believe them.
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We cannot say that the court clearly erred in doing so.”). Finally, the district
court’s statements regarding comparator evidence establish that the district court
did evaluate the comparator evidence but simply found it unpersuasive. That
finding, too, was not clearly erroneous.
Bichindaritz also alleged a violation of Federal Rule of Evidence 615. The
case law is unsettled as to whether the district court should have permitted Dr. Beth
Rushing, a former officer of the University, to serve as the University’s
representative under Rule 615(b). We assume, without deciding, that failing to
exclude Rushing while two other witnesses testified violated Rule 615. But any
such error was harmless: Rushing’s testimony was corroborated both by the
contemporaneous written record and by other witnesses, and her testimony was in
some respects unfavorable to the University. See United States v. Seschillie, 310
F.3d 1208, 1214 (9th Cir. 2002) (noting that violations of Rule 615 are subject to
harmless-error review); see also Obrey v. Johnson, 400 F.3d 691, 699-701 (9th Cir.
2005) (explaining that an error is harmless if “it is more probable than not that the
[fact finder] would have reached the same verdict” absent the erroneous ruling).
Accordingly, even if there was a violation of Rule 615, it provides Bichindaritz no
basis for relief on appeal.
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Finally, we deny both pending motions for judicial notice. The University
seeks judicial notice of administrative and state-court proceedings that considered
whether Bichindaritz’s denial of tenure violated the University’s Faculty Code.
Bichindaritz seeks judicial notice of the Findings of Fact and Conclusions of Law
from a related state-court case, in which the state court concluded that the
University had deliberately violated state law in the course of discovery.1 We deny
both motions for judicial notice because the material that is the subject of each
notice is unnecessary to the resolution of the issues presented on appeal. See Flick
v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000) (denying
request for judicial notice of information not relevant to any issue on appeal).
AFFIRMED. Motions for judicial notice DENIED.
1
While this appeal was pending, Bichindaritz moved in the district
court for relief from the judgment under Federal Rules of Civil Procedure 60(b)
and 62.1, predicated on the University’s state-court discovery violations. On
December 12, 2013, the district court entered an order denying Bichindaritz’s
motion for relief from the judgment.
4