Mary-Clare Peak v. Forever Living Products Int'l , 639 F. App'x 451 ( 2016 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FILED
    FOR THE NINTH CIRCUIT
    APR 25 2016
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    MARY-CLARE PEAK,                                 No. 13-17536
    Plaintiff - Appellant,             D.C. No. 2:11-cv-00903-SMM
    v.
    MEMORANDUM*
    FOREVER LIVING PRODUCTS
    INTERNATIONAL, INC.,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Arizona
    Stephen M. McNamee, Senior District Judge, Presiding
    Argued and Submitted April 12, 2016
    San Francisco, California
    Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.
    Appellee Mary-Clare Peak appeals a jury verdict in favor of her employer
    Forever Living Products (“FLP”) in her action under the Family and Medical
    Leave Act of 1993 (“FMLA”), 
    29 U.S.C. § 2601
     et seq. The facts of this case are
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    known to the parties, and we do not repeat them here. We have jurisdiction under
    
    28 U.S.C. § 1291
    .
    I
    Peak first argues that the district court erred by improperly refusing several
    requested jury instructions. But the district court’s instructions “fairly and
    adequately cover the issues presented,” and were neither misleading nor a
    misstatement of the law. Brewer v. City of Napa, 
    210 F.3d 1093
    , 1097 (9th Cir.
    2000). The relevant Department of Labor regulations were incorporated into the
    instructions, and an explicit reference to them would have confused the jury.
    Likewise, Peak’s proposed instructions concerning a request for certification of a
    serious health condition were irrelevant, because this process occurs after adequate
    notice of the need for FMLA leave has been given. Similarly, the court’s
    instructions regarding the meaning of “serious health condition” were accurate, and
    instructions regarding an employer’s duty to notify employees of the consequences
    of failing to comply with its FMLA policy were unnecessary. The district court’s
    exclusion of these instructions was not an abuse of discretion.
    II
    Peak’s next claim, that the district court erred in excluding evidence of her
    sexual harassment allegations, is also without merit. Peak’s allegations were not
    2
    probative of whether Peak provided adequate notice under the FMLA, see Fed. R.
    Evid. 401, 402, and their probative value was clearly outweighed by the risk of
    undue prejudice to FLP. See Fed. R. Evid. 403.
    III
    The district court also properly denied Peak’s motion in limine to exclude
    evidence of Peak’s tardiness. Evidence of Peak’s tardiness was relevant because it
    described FLP’s point of view when it terminated her, and thus whether FLP’s
    actions suggested it had received adequate notice of Peak’s need for leave. By
    contrast, Peak’s argument that she should have received discovery as to other
    employees’ tardiness is without merit; Peak’s cause of action was for violations of
    the FMLA, not disparate treatment.
    IV
    Lastly, Peak asserts she was unduly prejudiced by the court’s refusal to
    withdraw its discovery sanction. But the district court gave Peak permission to
    offer the notes into evidence and provided Peak with the opportunity to correct the
    record, which she did by eliciting testimony that the notes had in fact been
    produced. Moreover, Peak never moved or otherwise requested that the judge
    himself acknowledge error. This claim is waived. See In re Mercury Interactive
    Corp. Sec. Litig., 
    618 F.3d 988
    , 992 (9th Cir. 2010).
    3
    AFFIRMED.
    4
    

Document Info

Docket Number: 13-17536

Citation Numbers: 639 F. App'x 451

Filed Date: 4/25/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023