Arthur Clemens, Jr. v. Qwest Corp. ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR CLEMENS, JR., No. 15-35160
Plaintiff-Appellee, D.C. No. 2:13-cv-01793-JPD
v.
MEMORANDUM*
CENTURYLINK INC.,
Defendant,
and
QWEST CORPORATION,
Defendant-Appellant.
ARTHUR CLEMENS, JR., No. 15-35183
Plaintiff-Appellant, D.C. No. 2:13-cv-01793-JPD
v.
CENTURYLINK INC.,
Defendant,
and
QWEST CORPORATION,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue II, Magistrate Judge, Presiding
Argued and Submitted October 2, 2017
Seattle, Washington
Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.
Defendant Qwest Corporation appeals from a judgment following a jury
verdict imposing liability for Title VII unlawful employment retaliation against
plaintiff Arthur Clemens. As the parties are familiar with the facts, we do not
recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. Any error by the district court in excluding the typed April 29 and July
18, 2008 interview notes was harmless. Virtually every pertinent detail within the
excluded notes was established, or could have been, through the testimony of those
who participated in the interviews and prepared the notes. Qwest employee John
Rust, who conducted the April 29 interview and prepared the accompanying notes,
testified about his recollections. Shannon Ridge, who assisted Rust, testified on
other subjects and was available to be examined about the April 29 interview.
Brad Butler and Rebecca Flores, who prepared the notes corresponding to the July
1
We dispose of Clemens’s cross-appeal in an opinion filed concurrently with this
memorandum.
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18 interview, testified extensively as to what they saw and heard during that
interview, as did Clemens and his union representative Stan Wiley. All six of
these witnesses were subject to cross-examination. And both Qwest and Clemens
used the typed interview notes extensively to refresh the witnesses’ recollections of
the interviews where necessary. Qwest, in other words, achieved through these
witnesses virtually all of what it claims to have lost by the notes’ exclusion. Any
error in excluding the notes was therefore harmless.
2. Exercising its discretion under Alexander v. Gardner-Denver Co., 415
U.S. 36, 60 n.21 (1974), the district court reasonably concluded that Clemens’s
claims of race discrimination and retaliation were not at issue at the arbitration and
that the arbitral decision was therefore inadmissible. Explicit references to racial
bias, Clemens’s race, and employment retaliation are absent from the excerpts of
the decision to which Qwest points, as well as from the “Discussion and Opinion”
section of the arbitrator’s written decision. Clemens’s union representative,
moreover, certified that he “made the strategic decision not to pursue claims of
race discrimination or retaliation” and “did not present evidence related to those
potential claims” during the arbitration. Given the decision’s at best oblique
references to race discrimination and retaliation and the union representative’s
affidavit, it was well within the district court’s discretion to conclude that the
“record before the arbitrator was not adequate with respect to the issues of race
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discrimination and retaliation” and that the arbitrator’s decision was therefore
inadmissible. See Costa v. Desert Palace, Inc., 299 F.3d 838, 863 (9th Cir. 2002)
(en banc).
Moreover, it was within the district court’s discretion to hold the arbitration
decision inadmissible under Federal Rule of Evidence 403. The decision is replete
with explicit findings that Clemens and his version of events were not to be
believed, as well as acerbic language describing Clemens and his conduct. Qwest
itself agrees that the decision “focused mostly on the incredibility of Clemens’s
claims.” Given these features, it was not an abuse of discretion to conclude that
the report was unduly inflammatory and would confuse, mislead, or usurp the
jury’s role in assessing Clemens’s credibility.
The Washington State Human Rights Commission (“WSHRC”) report, on
the other hand, squarely addressed Clemens’s race-discrimination and retaliation
claims and was admissible in its own right. See Heyne v. Caruso, 69 F.3d 1475,
1483 (9th Cir. 1995); Plummer v. W. Int’l Hotels Co., 656 F.2d 502, 504–05 (9th
Cir. 1981). It also avoided the arbitration decision’s credibility findings and
inflammatory rhetoric. In light of these differences, it was not an abuse of
discretion for the district court to exclude the arbitral decision’s text while
admitting the WSHRC report.
3. The district court did not commit prejudicial error by responding to a jury
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question on causation by referring the jury to a correct instruction from the court’s
initial charge. “The necessity, extent and character of additional [jury] instructions
are matters within the sound discretion of the trial court.” United States v. Collom,
614 F.2d 624, 631 (9th Cir. 1979) (quoting Wilson v. United States, 422 F.2d 1303,
1304 (9th Cir. 1970)). In the Ninth Circuit, “[t]he ultimate question is whether the
charge taken as a whole was such as to confuse or leave an erroneous impression in
the minds of the jurors.” Powell v. United States, 347 F.2d 156, 158 (9th Cir.
1965) (internal quotation marks omitted).
We are not persuaded by Qwest’s argument that the district court’s referral
of the jury to the court’s original, legally accurate instruction “left the jury to
decide liability based on two equally erroneous standards of causation: motivating
factor or only factor.” It was far from an abuse of discretion to draw the jury back
to the initial instruction’s undoubtedly correct language and refuse to employ a
formulation not provided for in this circuit’s model civil jury instructions. While
the district court’s answer stopped short of affirmatively instructing the jury not to
apply the erroneous causation standards the jury had referenced in its question, the
language of the court’s original charge was sufficient to clarify that neither
standard was the correct one and that the but-for test alone was to govern the jury’s
consideration of Clemens’s retaliation claim. None of the authorities Qwest offers
compels a contrary conclusion.
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In any event, any error was harmless. When discussing the proper response
to the jury’s question with the district court, Qwest requested that the court instruct
the jury that but-for causation “requires proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the
employer.” But this proposed language was substantially similar to that of the
district court’s original instruction and lacked any admonition that the jury was not
to apply the two incorrect causation standards it had articulated in its question—the
very same defect to which Qwest now takes exception. Given the similarities
between Qwest’s proposed answer and the one the district court provided, it is
unlikely that the jury would have been dispelled of the grave confusion Qwest
ascribes to it had the district court used Qwest’s language instead. It is more
probable than not, in other words, that the court’s refusal to respond to the jury as
Qwest requested, if erroneous, was harmless. See Clem v. Lomeli, 566 F.3d 1177,
1182 (9th Cir. 2009).
AFFIRMED.
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