Mukhtar

ORDER

The opinion filed August 7, 2002 is hereby ordered amended as follows:

Slip Op. at 11465: Replace the counsel listings with the following:

Slip Op. at 11483 n.11. Add the following to the end of footnote 11:

Slip Op. at 11484: Add the following footnote on line 13 following Velarde, 214 F.3d at 1210:

Slip Op. at 11485: Delete the second paragraph and replace with the following paragraph:

Slip Op. at 11485 n. 13: Delete footnote 13. Except as herein modified, the panel has voted unanimously to deny the Petition for Rehearing. Judge O’Scannlain and Judge Tallman have voted to reject the Petition for Rehearing En Banc and Judge King so recommends.

*1075 The full court was advised of the Petition for Rehearing En Banc. A judge of this court requested a vote on whether to rehear the matter en banc. The matter faded to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.

The petition for rehearing and the petition for rehearing en banc are DENIED.

dissenting from denial of rehearing en banc:

This case is a civil rights action by a black professor who was denied tenure because of his race and national origin. A federal jury so found, and awarded him damages of $637,000. 1 In a wholly unprecedented action, a panel of this court has taken away the jury’s verdict because the district judge failed to make explicit her reasons for allowing an expert witness to testify. The panel refused to consider whether the testimony qualified under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), or alternatively, to remand in order to allow the district judge to supply the findings it contends she failed to make. Instead, it ordered a new trial. The panel’s action in this case is directly contrary to the practice we have followed in every other reported case of which we are aware.

After a nine day trial, the jury returned a verdict in favor of Doctor Mohamed Osman Elsayed Mukhtar, a professor of Mass Communications at California State University, Hayward (“the State University”). The jury found that the State University had unlawfully discriminated against Professor Elsayed. A panel of this…