Carl Haynes v. Home Depot USA, Inc. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL HAYNES, No. 21-55827
Plaintiff-Appellant, D.C. No.
3:15-cv-01038-CAB-JLB
v.
HOME DEPOT USA, INC., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted December 8, 2022**
Pasadena, California
Before: R. NELSON, BADE, and FORREST, Circuit Judges.
This appeal comes to us after Carl Haynes lost at trial and on multiple rulings
in an employment action against his former employer, Home Depot USA, Inc. The
jury returned a verdict for Home Depot, and the district court denied Haynes’s
motion for new trial and granted Home Depot’s motion for summary judgment on
*
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).
punitive damages. We have jurisdiction under 28 U.S.C. § 1291. We review
evidentiary rulings and issues related to the management of trial for abuse of
discretion. Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 448, 450 (9th
Cir. 1994). We review legal questions and the internal consistency of jury verdicts
de novo. United States v. Campbell, 42 F.3d 1199, 1203 (9th Cir. 1994); Norris v.
Sysco Corp., 191 F.3d 1043, 1047 (9th Cir. 1999). We affirm.
1. We first address both Home Depot’s complaint that Haynes relies on extra-
record materials not presented to the district court and Haynes’s subsequent motion
to supplement the record with those materials (Dkt. No. 43). Haynes’s appellate
briefing repeatedly cites portions of a deposition from a later case against Home
Depot in California state court.
“[P]apers not filed with the district court or admitted into evidence by that
court are not part of the record on appeal.” Barcamerica Int’l USA Tr. v. Tyfield
Imps., Inc., 289 F.3d 589, 594 (9th Cir. 2002) (citation omitted). Because the
deposition testimony was not presented to the district court, it is “not properly part
of the record before us.” Id. While we may “exercise inherent authority to
supplement the record in extraordinary cases,” Lowry v. Barnhart, 329 F.3d 1019,
1024 (9th Cir. 2003), Haynes fails to show that this case is extraordinary, and we
conclude that the “purported new evidence does not add to the record,” Morgan v.
Safeway Stores, Inc., 884 F.2d 1211, 1213 (9th Cir. 1989). We therefore deny
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Haynes’s motion to supplement the record on appeal and decline to rely on these
extra-record materials.
2. The district court did not abuse its discretion in addressing Home Depot’s
three challenged motions in limine. The first motion sought to exclude witnesses
that Haynes did not timely disclose. But it was withdrawn by Home Depot, so no
witness was limited or excluded and there was no ruling to prejudice Haynes.
The second motion sought to exclude testimony from Haynes’s “me too”
witnesses. The district court only provided a tentative ruling that gave general
parameters for such witnesses and excluded no one in particular. Haynes complains
that the testimony of another former assistant store manager was wrongly limited by
this ruling. But the district court only prevented testimony from that witness about
an incident occurring three years later, involving a different store, different people,
and none of the same managers. This was not an abuse of discretion. See Fed. R.
Evid. 403.1
The third motion sought to exclude assistant manager experiences at other
locations. But it was limited to testimony about an overtime claim and did not, as
Haynes claims, hinder his ability to show a “pattern of age discrimination.” Haynes
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To the extent that Haynes complains that the district court’s ruling on the motion
wrongly limited other witnesses, he “failed to . . . attempt to introduce . . . testimony”
from anyone else supposedly excluded by the tentative ruling and thus “cannot
challenge the exclusion of that evidence on appeal.” Tennison v. Circus Circus
Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001).
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fails to show any abuse of discretion or prejudice suffered from the district court’s
ruling on this motion.
3. The district court did not abuse its discretion in allowing testimony from
Courtney Korkow, a regional human resources director for Home Depot, about
employee demographic data. Though Korkow was not identified as a defense
witness in pretrial disclosures, Haynes’s counsel represented that Korkow’s late
inclusion “wouldn’t be a problem” if her deposition before trial was permitted—
which it was. United States v. Newman, 6 F.3d 623, 629 (9th Cir. 1993) (litigant
“withdrew his objection and therefore failed to make a contemporaneous
objection”). Moreover, the initial failure to disclose was harmless, as Korkow was
already identified as Haynes’s own witness and the district court reopened discovery
to allow Haynes to adequately prepare for trial. See Ollier v. Sweetwater Union High
Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014).
Haynes also complains that Korkow’s testimony was improper because she
lacked personal knowledge. But Haynes failed to preserve this issue with a
contemporaneous objection, and we discern no plain error in the admission of the
testimony. Fed. R. Evid. 103(e). Haynes’s argument rests largely on the
impermissible extra-record materials, and we conclude that Korkow’s knowledge of
the relevant database and review of the demographic data in it provided personal
knowledge to support her testimony.
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4. The district court did not abuse its discretion in admitting Exhibit 625.
Haynes argues that this exhibit lacked foundation and violated Federal Rule of
Evidence 1006, but he failed to preserve these issues with a contemporaneous and
specific objection and the district court never ruled on them. Fed. R. Evid.
103(a)(1)(A)–(B). Haynes’s arguments also lack merit. Foundation for the
admission of this exhibit as a business record was laid by Korkow’s previous
testimony about the source and preparation of the data. See U-Haul Int’l, Inc. v.
Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1045 (9th Cir. 2009). And Federal Rule
of Evidence 1006 does not apply because the exhibit is not a summary of voluminous
evidence. Id. at 1046 (“[T]he summaries themselves constituted the business
records. They were the writings at issue, not summaries of other evidence.
Thus, Rule 1006 does not apply.”).
5. The district court did not err in adding a “delayed discovery” jury
instruction and related verdict form during trial. “We have consistently held that
issues not preserved in the pretrial order have been eliminated from the action.” S.
Cal. Retail Clerks Union & Food Emps. Joint Pension Tr. Fund v. Bjorklund, 728
F.2d 1262, 1264 (9th Cir. 1984). Home Depot referenced the defenses in question
in the pretrial order, specifically reserving the right to assert them, and engaged in
extensive discussion about them in the pretrial briefing. Haynes also fails to
persuade that he suffered any meaningful prejudice based on the timing of adding
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the instruction and the verdict form.
Nor did the instruction or verdict form violate the doctrine of the law of the
case. Under that doctrine, a “lower court is precluded from reconsidering” an issue
“decided by a higher court.” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035,
1042 (9th Cir. 2018). Though some summary-judgment issues were previously
litigated before us, we did not address or resolve the issue of the proper formulation
of the “delayed discovery” jury instruction. See Haynes v. Home Depot USA, Inc.,
800 F. App’x 480, 484 (9th Cir. 2020).2
6. The district court did not err by accepting an inconsistent verdict. See
Norris, 191 F.3d at 1047 (internal consistency of jury verdict is reviewed de novo).
The jury found that 1) Haynes did have “notice or information of circumstances to
put a reasonable person on inquiry to seek to learn the facts necessary to bring an
age discrimination claim by February 12, 2014,” and that 2) Haynes did not “prove
that his age was a substantial motivating reason for Home Depot’s decision to
terminate him.” Although the jury ignored the instruction not to proceed to the
second question based on its answer to the first, these answers are consistent and
provide no basis for reversal.
2
There is also no merit to Haynes’s argument that the district court violated our prior
memorandum decision by not allowing evidence or testimony about Home Depot’s
alleged fabrication of write-ups against its employees. The portion of the previous
decision that Haynes relies on dealt only with a sanctions issue and had no bearing
on the district court’s evidentiary rulings. Haynes, 800 F. App’x at 487.
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7. The district court did not abuse its discretion in its time management at
trial. Haynes argues that the district court unreasonably limited his time to conduct
the jury trial. But “[t]he case law makes clear that where a district court has set
reasonable time limits and has shown flexibility in applying them, that court does
not abuse its discretion.” See Amarel v. Connell, 102 F.3d 1494, 1514 (9th Cir.
1996). Haynes never objected to the time limits or asked for more time at trial, and
we agree with the district court that Haynes has not shown that its actions were
unreasonable or rigid in any way.
8. Haynes challenges the grant of summary judgment for Home Depot on the
question of punitive damages. But “[t]here can be no punitive damages where
compensatory damages have not been awarded.” Deland v. Old Republic Life Ins.
Co., 758 F.2d 1331, 1339 n.4 (9th Cir. 1985). We do not disturb the jury’s verdict
for Home Depot, so punitive damages cannot be awarded.
AFFIRMED. Haynes’s motion to supplement the record on appeal (Dkt. No.
43) is DENIED.
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