Rosemary Garity v. Megan Brennan ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY GARITY, No. 20-15588
Plaintiff-Appellant, D.C. No.
2:11-cv-01805-RFB-CWH
v.
MEGAN J. BRENNAN, U.S Postmaster MEMORANDUM*
General,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted April 23, 2021**
Before: GOODWIN, SILVERMAN, and BRESS, Circuit Judges.
Concurrence by Judge BRESS
Rosemary Garity, proceeding pro se, appeals the district court’s judgment
and its order awarding back pay following a bench trial in Garity’s suit alleging
that the United States Postal Service, her former employer, discriminated against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
her because of her disabilities and race in violation of the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq., and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s conclusions of law and for clear error its findings of fact
and computation of damages. Ambassador Hotel Co., Ltd. v. Wei-Chuan Inv., 189
F.3d 1017, 1024 (9th Cir. 1999). We affirm.
Garity has not shown clear error in the district court’s computation of back
pay on her discrimination claim under the Rehabilitation Act. See Lentini v. Cal.
Ctr. for the Arts, Escondido, 370 F.3d 837, 850 (9th Cir. 2004) (following a bench
trial, “[w]e will not disturb an award of damages unless it is clearly unsupported by
the evidence, or it shocks the conscience” (citation and internal quotation marks
omitted)).
The district court properly denied Garity’s request for front pay because she
failed to show that she did not voluntarily withdraw from the workforce by
accepting disability retirement. See Caudle v. Bristow Optical Co., Inc., 224 F.3d
1014, 1020-21 (9th Cir. 2000) (front pay was not warranted where a plaintiff failed
to show that her withdrawal from the workforce was not voluntary).
The district court properly denied Garity’s request for punitive damages
because punitive damages are not recoverable in this action. See 42 U.S.C.
§§ 1981a(a)(2) & (b)(1) (setting out damages remedies for violations of Title VII
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and the Rehabilitation Act and stating that punitive damages are not available
against a government agency).
The district court properly denied Garity’s request for attorney’s fees
because “[p]ro se plaintiffs . . . are not entitled to attorney’s fees.” Blanchard v.
Morton Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007).
Garity’s award of back pay renders moot her arguments on appeal
concerning her other claims, which seek back pay for the same time period. See
Jerron W., Inc. v. State of Cal., State Bd. of Equalization, 129 F.3d 1334, 1336 (9th
Cir. 1997) (“A controversy is moot if effective relief cannot be granted.”); see also
Gen. Tel. Co. of the Nw., Inc., v. Equal Emp. Opportunity Comm’n, 446 U.S. 318,
333 (1980) (“It . . . goes without saying that the courts can and should preclude
double recovery by an individual.”).
The district court’s exclusion of Garity’s emotional distress evidence as a
sanction for violating the Rule 35 order lacks support in the record. See Fed. R.
Civ. P. 35(a)(1) (“The court where the action is pending may order a party whose
mental or physical condition . . . is in controversy to submit to a physical or mental
examination[.]”); Fed. R. Civ. P. 37(b)(2)(A)(ii) (providing that if a party fails to
obey an order under Rule 35, the court may “prohibit[] the disobedient party from .
. . introducing designated matters in evidence”). The Rule 35 order required
defendant to disclose the names of the tests given in the Independent Medical
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Examination but included no prohibition on preparing for them, and the record
contains minimal support for the district court’s finding that Garity was otherwise
aware that she should not prepare for them. However, any error was harmless
because the district court acted within its discretion in excluding the evidence on
the alternate ground that its probative value was substantially outweighed by the
danger of unfair prejudice and confusing the issues. See Fed. R. Evid. 403 (“The
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”); Ollier v. Sweetwater Union High Sch. Dist.,
768 F.3d 843, 859 (9th Cir. 2014) (standard of review; explaining that a showing
of prejudice is required for reversal of evidentiary rulings, including discovery
sanctions).
The district court properly determined that a bench trial was warranted
because only equitable damages remained. See Lutz v. Glendale Union High Sch.,
403 F.3d 1061, 1067-69 (9th Cir. 2005) (holding that there is no right to a jury trial
on a claim for back pay under Title VII or the Rehabilitation Act).
AFFIRMED.
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FILED
Garity v. Brennan, No. 20-15588 APR 27 2021
MOLLY C. DWYER, CLERK
BRESS, Circuit Judge, concurring: U.S. COURT OF APPEALS
I concur in the Court’s disposition, except for its determination that the
district court lacked a sufficient basis for excluding Garity’s emotional distress
evidence as a sanction for her violation of a Rule 35 Order. Because we correctly
conclude that any error in excluding the evidence on this ground was harmless, the
discussion of whether the district court erred is unnecessary.