                            NOT FOR PUBLICATION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.

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