Alice Robin v. City of Monrovia , 520 F. App'x 496 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALICE ROBIN, No. 11-55131
Plaintiff - Appellant, D.C. No. 2:09-cv-06235-PJW
v.
MEMORANDUM *
CITY OF MONROVIA,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Patrick J. Walsh, Magistrate Judge, Presiding
Argued and Submitted March 4, 2013
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and KENNELLY, District Judge.**
Appellant Alice Robin is a former employee of the City of Monrovia. She
sued the City for allegedly retaliating against her, in violation of Title VII, the Age
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
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Discrimination in Employment Act, and the California Fair Employment and
Housing Act, after she filed complaints with the Equal Employment Opportunity
Commission. At trial, the jury was instructed to consider whether four separate
actions by the City—including the offer of a retirement package known as the
“Golden Handshake”—were retaliatory acts. The jury returned a verdict in favor
of the City and the court entered judgment accordingly. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. Robin argues that the district court erred by denying her several motions
for judgment as a matter of law. We find no error. First, a denial of a motion for
summary judgment is not subject to appellate review after a trial on the merits.
Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir. 1987). Second,
the district court did not err in denying Robin’s motion for a directed verdict,
motion for judgment as a matter of law, and renewed motion for judgment as a
matter of law. Such motions may only be granted when “the evidence permits only
one reasonable conclusion.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
961 (9th Cir. 2009) (internal quotation marks omitted); see also Fed. R. Civ. P. 50.
Here, the district court correctly concluded that the case turned on different
inferences that a trier of fact could draw from evidence about what actions the
parties took and why they took them.
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2. Robin further argues that the district court erred by not giving a jury
instruction that the settlement agreement offered to her as part of the “Golden
Handshake” retirement program did not comply with the Older Workers Benefit
Protection Act (OWBPA). We do not think the district court abused its discretion
by failing to give this instruction in light of the court’s concern about confusing the
jury. We do, however, conclude that the district court erred by declining to give an
instruction setting forth the OWBPA’s requirements. A party is entitled to an
instruction about her theory of the case if it is (1) supported by law, (2) has
foundation in the evidence, and (3) was not covered by other instructions. Dang v.
Cross, 422 F.3d 800, 804-05, 809 (9th Cir. 2005); Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002). Here, one of Robin’s theories of her case was that the City
committed an adverse act when it offered her a settlement agreement that required
her to waive her right to consult an attorney, did not give her the requisite number
of days to consider the settlement, and did not inform her of other employees who
were eligible or selected for the retirement incentive program, all in violation of the
OWBPA. See 29 U.S.C. § 626(f)(1). Robin’s theory was that the mere offer of
such a settlement—despite the fact that she did not accept it—was a retaliatory act.
Although the district court suggested that Robin argue to the jury that the
settlement violated the OWBPA, without a legal instruction, there was little to
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guide the jury’s deliberations on the issue. Robin was therefore entitled to a jury
instruction setting forth the OWBPA’s requirements, and the district court erred in
not giving such an instruction.
3. Although we find error, we conclude that it was harmless. An error in
jury instructions in a civil case does not require reversal if it is “‘more probable
than not that the jury would have reached the same verdict’ had it been properly
instructed.” Galdamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005) (quoting
Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005)). Here, the jury was
instructed to consider whether four separate acts were retaliatory, including the
City’s decision to reduce Robin’s position to half-time and its ultimate decision to
lay her off. In light of the evidence at trial, Robin’s claim that these acts were
retaliatory was stronger than her claim that the offer of the Golden Handshake was
retaliatory. This is especially true because the evidence at trial showed that the
City had a good-faith reason for asking Robin to sign the settlement agreement on
an expedited schedule, that the City ultimately gave her extra time to consider the
settlement agreement, and that she did consult with an attorney before rejecting the
settlement offer. On this record, we conclude that a properly instructed jury
probably would not have found that the offer of the Golden Handshake was
retaliatory when it did not find that the City’s reduction of Robin’s position to half-
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time and the decision to lay her off were retaliatory. We therefore conclude that it
is more probable than not that the jury would have reached the same verdict had it
been properly instructed, and the district court’s failure to give the requested
OWBPA jury instruction was harmless.
4. Finally, the district court did not abuse its discretion in denying Robin’s
motion for a new trial. “The district court’s denial of a motion for a new trial is
reversible ‘only if the record contains no evidence in support of the verdict’ or if
the district court ‘made a mistake of law.’” Go Daddy Software, 581 F.3d at 962(quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)). The
record here supports the verdict, and the district court did not make any reversible
errors of law.
AFFIRMED.
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