                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            AUG 2 1999

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk



 ABDELRAHMAN E. MOHAMED,

          Plaintiff-Appellant,

 v.                                                     No. 98-6274
                                                 (D.C. No. CIV-97-1720-M)
 STATE OF OKLAHOMA, ex rel.                           (W. Dist. Okla.)
 OKLAHOMA DEPARTMENT OF
 TRANSPORTATION,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, MAGILL, ** and EBEL, Circuit Judges.



      Abdelrahman E. Mohamed filed this action against his employer, the

Oklahoma Department of Transportation, asserting that he had been discriminated

against because of his race, national origin, and religion, and that he had been

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       The Honorable Frank J. Magill, Senior Circuit Judge, United States Court
      **

of Appeals for the Eighth Circuit, sitting by designation.
retaliated against for complaining of the discrimination. He also asserted a state

tort claim for breach of an alleged covenant of good faith and fair dealing. In two

separate orders, the district court granted summary judgment against Mr.

Mohammed on his race/national origin, retaliation, and state law claims. The

court denied summary judgment on Mr. Mohamed’s religious discrimination claim

relating to defendant’s requirement that he take leave to travel to his Mosque for

Friday prayer when it allegedly permitted co-workers to celebrate religious

holidays such as Christmas during working hours. After a trial, the jury found for

defendant on the religious discrimination claim. Mr. Mohamed appeals, and we

affirm.

      On appeal, Mr. Mohamed contends the district court erred when it granted

summary judgment against him on all but his claim of religious discrimination.

We have reviewed the entire record, and we are not persuaded the district court

erred. In two very thorough orders, the district court reviewed the record

submitted by Mr. Mohamed in response to defendant’s motions for summary

judgment and determined Mr. Mohamed had not supported his allegations with

sufficient evidence to warrant a trial on the issues. See ORDER filed June 3,

1998; ORDER filed June 8, 1998. We are in substantial agreement with the

district court’s analysis of both the facts and the law in both of those orders, and

we affirm the grant of summary judgment.


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      Mr. Mohamed complains that the timing of the district court’s rulings on

the motions for summary judgment just prior to trial was prejudicial to him.

However, nothing in the record on appeal indicates that Mr. Mohamed moved the

district court for a continuance of the trial date or otherwise alerted the court to

any prejudice. While it would no doubt have made it easier for both parties if the

court had ruled sooner, the court did not abuse its discretion in failing to do so.

      Mr. Mohamed also contends the district judge abused her discretion by

refusing to recuse when it was pointed out that Mr. Mohamed had attempted

unsuccessfully to hire her several years before she became a judge to represent

him with respect to certain discrimination claims against this same defendant.

Mr. Mohamed relies on 28 U.S.C. § 455(a), which requires a judge to disqualify

herself “in any proceeding in which [her] impartiality might reasonably be

questioned.” “‘The test is whether a reasonable person, knowing all the relevant

facts, would harbor doubts about the judge’s impartiality.’” United States v.

Stenzel, 49 F.3d 658, 661 (10th Cir. 1995) (quoting Hinman v. Rogers, 831 F.2d

937, 939 (10th Cir. 1987)).

      The record reflects that no formal motion to recuse was filed. Rather, after

stipulating in a Joint Status Report that he did not consent to trial before a

magistrate judge, Mr. Mohamed subsequently filed a consent form. The district

court entered an order granting the motion despite the fact that defendant had not


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consented. Defendant filed an application to return the case to the district court,

pointing out its lack of consent. Mr. Mohamed filed an objection to the

application and in an attachment to that objection asserted as follows:

          1. When the Complaint was filed in this cause it was assigned by
      lottery to Judge Vicki Miles-LaGrange.

          2. Plaintiff legal counsel and the Judge graduated from the same
      high school. The Judge has a long and distinguished career in public
      service. In all proceedings and appearances at the status conference,
      Judge Miles-LaGrange has been most cordial and professional with
      all legal counsel. Plaintiff legal counsel has not detected any bias by
      Judge Miles-LaGrange toward or against either party.

         3. That some years ago Plaintiff telephoned Judge Miles-
      LaGrange before she was a federal judge during a time she was an
      Oklahoma State Senator. Plaintiff was seeking legal counsel against
      ODOT. Plaintiff reached Senator Miles-LaGrange by telephone and
      discussed with her some acts and omissions against him by ODOT
      and Plaintiff requested that Senator Miles-LaGrange represent him
      against ODOT as legal counsel. Plaintiff reports Senator Miles-
      LaGrange said she “was not interested” and did not take Plaintiff’s
      case, did not meet personally with the Plaintiff, and did not review
      any documents of the Plaintiff.

          4. Then, in this case, on March 9, 1998, the Court issued an
      Order on Plaintiff’s Motion for Protective Order and ordered
      Defendant’s initial Interrogatories and Requests for Production to be
      stricken and any future Interrogatories and Requests for Production
      drafted by the Defendant shall not include discovery requests
      concerning records or matters already in Defendant’s possession.

         5. Then, two days later on March 11, 1998, the Court entered a
      second Order on Plaintiff’s Motion for Protective Order. The Court
      vacated its March 9, 1998 Order and granted Defendant’s Motion to
      Compel and ordered Plaintiff to respond to Defendant’s
      Interrogatories and produce documents requested within ten days.


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         6. Neither Plaintiff nor Plaintiff’s legal counsel received any
      explanation for the Court’s sudden change of position.

         7. Plaintiff feels the earlier actions of Senator Miles-LaGrange in
      originally not being interested in taking his case, coupled with said
      dramatic change in ruling on Plaintiff’s Motion for Protective Order
      demonstrates judicial bias against the Plaintiff and Plaintiff does not
      feel he can receive a fair trial based on those actions.

Aplt. App. at 49-50. Without responding to Mr. Mohamed’s assertion of bias, the

district court entered an order noting the lack of consent by defendant to trial

before the magistrate judge and directing that the case be returned to the district

court’s docket.

      On the first day of trial, Mr. Mohamed again raised the issue of appearance

of impartiality in the context of asking the court for an explanation of why the

case was transferred to the magistrate and then taken back. The court first stated:

“I would say for the record that I’m looking at [Mr. Mohamed] and I certainly do

not know him or recall ever meeting him, just from being here in court today.”

Aplee. Supp. App., vol II, at 233. Counsel for Mr. Mohamed then said:

             To clarify for the Court, Mr. Mohamed’s previous contact with
      you, I am advised, was in the nature of a telephone call only to you to
      seek representation. You were not interested in taking the case. We
      have no evidence that you ever met with Mr. Mohamed, represented
      him or the Department of Transportation or anybody else. But there
      was a telephone contact, he advises me, and that was the reason for
      our request. It is limited to that.

Id. at 235. The court then explained again why the case could not be transferred

to the magistrate judge, to which counsel responded, “I accept that explanation.

                                         -5-
We were just making a record to try to iron that out and find out what happened.”

Id. at 236.

      The objective standard of 28 U.S.C. § 455 requires a factual basis for

questioning a judge’s impartiality. United States v. Cooley, 1 F.3d 985, 993 (10th

Cir. 1993). Adverse rulings by a judge do not constitute grounds for recusal. See

id. at 994. Moreover, it is ludicrous to suggest there is an appearance of

impartiality because the judge, many years before, once turned down a telephone

request from Mr. Mohamed seeking representation in a discrimination case

against this defendant. Based on no more facts than those alleged, no objective

person would question the judge’s impartiality in this case, and she had no

obligation to recuse.

      Finally, Mr. Mohamed argues the district court erred in declining to give a

his requested Instruction No. 3, which would have told the jury that plaintiff was

not required to produce direct evidence of unlawful motive, and also would have

told the jury that plaintiff need not prove that religion was the “sole motivation or

the primary motivation for defendant’s personnel actions.” Aplt. App. at 314.

The district court did not err in refusing to give this instruction. First, the court

already had an instruction covering circumstantial evidence which described for

the jury the difference between direct evidence and “indirect or circumstantial

evidence.” Id. at 297. Second, as the district court recognized, the proposed


                                           -6-
instruction would have made this a mixed motive case, which even counsel for

Mr. Mohamed recognized he had not alleged. See Aplee. Supp. App., vol II, at

365-66.

      In sum, Mr. Mohamed has not convinced us the district court erred. We

AFFIRM the judgment of the district court.


                                             ENTERED FOR THE COURT


                                             Stephanie K. Seymour
                                             Chief Judge




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