Galdamez v. Potter ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARLENE GALDAMEZ,  No. 03-35682
Plaintiff-Appellant,
v.  D.C. No.
CV-00-01768-JJ
JOHN POTTER, Postmaster General,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding
Argued and Submitted
March 11, 2005—Portland, Oregon
Filed July 15, 2005
Before: Procter Hug, Jr., Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Hug
8253
GALDAMEZ v. POTTER 8257
COUNSEL
Thomas F. Spaulding, Spaulding Cox & Schaeffer, LLP, Port-
land, Oregon, for the appellant.
Ronald K. Silver, Assistant United States Attorney, Portland,
Oregon, for the appellee.
OPINION
HUG, Circuit Judge:
Arlene Galdamez appeals the district court’s denial of her
motion for a new trial following a defense verdict in her Title
VII case against the United States Postal Service. We treat
Galdamez’s timely appeal from denial of the new trial motion
as an appeal from final judgment. See 11 Charles Alan
Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice
& Procedure § 2818, at 191-93 (1995); accord Medrano v.
City of Los Angeles, 973 F.2d 1499, 1502-03 (9th Cir. 1992);
In re Nicholson, 779 F.2d 514, 515-16 (9th Cir. 1985). There-
fore, we have jurisdiction under 28 U.S.C. § 1291. Although
the district court correctly denied Galdamez’s motion to
amend the pretrial order and did not abuse its discretion in
formulating either the jury instructions or the special verdict,
it nonetheless erred by denying her request for an instruction
on the Postal Service’s potential liability for harassment by
8258 GALDAMEZ v. POTTER
customers and community members based on her race and
national origin. Accordingly, we affirm in part, reverse in
part, and remand for a new trial on Galdamez’s harassment
claim.
I
Factual and Procedural Background
Arlene Galdamez was born in Honduras and speaks English
with a discernible accent. She began working for the Postal
Service in 1983. In late 1993, she took over as postmaster in
Willamina, Oregon. Galdamez immediately began to make a
number of changes designed to bring the Willamina office
into line with Postal Service regulations. For example, she
insisted on timely payment of post office box fees, prohibited
non-employees from entering non-public areas, and insisted
on returning incorrectly addressed mail even when carriers
knew how to deliver it. These changes were met by hostility
and opposition from both customers and other postal workers.
Customers complained to Jim Bogroff, her immediate super-
visor, as well as William Jackson, the District Manager for
Oregon. Local media also devoted considerable coverage to
the controversy.
Galdamez, however, perceived a good deal of this hostility
as stemming from her race, national origin, and accented
English. Throughout her time in Willamina, she endured
offensive verbal comments from customers and community
members, references in local newspapers to her accent and
foreign birth, direct and indirect threats to her safety, and van-
dalism to her car. According to Galdamez, her reports of
harassment and requests for assistance were rebuffed by
Bogroff and other Service managers.
Community opposition culminated in a petition drive and
a “town hall” meeting, held on March 26, 1997, aimed at
removing Galdamez from her position. The petition and meet-
GALDAMEZ v. POTTER 8259
ing were organized by Ron “Chris” Greenhill, a postal cus-
tomer whose mail was delayed at the post office for some
time because the Greenhills did not have a proper mail recep-
tacle at their rural address. Despite requests from Galdamez,
neither Bogroff nor Jackson attended the community meeting
to defend her, and Jackson made a number of comments criti-
cal of her performance in interviews with local and regional
newspapers.1
At around the same time, the Postal Service initiated a
disciplinary investigation of Galdamez based on complaints
that she was “rude” and that her insistence on regulatory com-
pliance undermined good customer service. On March 21,
1997, Bogroff held an investigative interview with Galdamez
and her representative, Bob Bernal.2 During that meeting,
Galdamez insisted that a great deal of the community criti-
cism was motivated by her foreign birth and accent rather
than her performance as postmaster. Several days later, Bog-
roff notified Galdamez that she was being placed on adminis-
trative leave effective April 1, 1997, and prohibited her from
entering non-public areas of the post office. Bogroff then pro-
posed formal discipline by way of a “Letter of Warning in
Lieu of Time-Off Suspension,” which Jackson later approved.
Galdamez filed this action in district court alleging race,
color, and/or national origin discrimination in violation of
Title VII. The parties consented to trial before a magistrate
judge,3 who entered a stipulated pretrial order setting forth the
1
In contrast, when Janet Batchelor, a white postmaster, experienced
similar community resistance to operational changes in another rural Ore-
gon town, Jackson and other Service personnel attended a community
meeting and provided considerable public support.
2
Although postmasters are not union members, they are entitled to a
representative from the National Association of Postmasters of the United
States during disciplinary proceedings. On March 25, 1997, Ron Gates
replaced Bob Bernal as Galdamez’s representative.
3
All references to the “district court” herein refer to proceedings before
and rulings by the magistrate judge.
8260 GALDAMEZ v. POTTER
pertinent claims and issues of fact for trial. Following the
close of evidence, Galdamez made an oral motion to amend
the pretrial order to include a retaliation claim, which the dis-
trict court denied. The district court also refused to give a
requested jury instruction on the Postal Service’s potential lia-
bility for failing to investigate and remedy harassment at the
hands of customers and community members.
During deliberations, the jury sent a note to the judge seek-
ing clarification of the special verdict form. In response, the
district court gave the jury a modified special verdict form
and additional instructions requiring the jury to decide
whether discrimination occurred, and if so, to specify which
of Galdamez’s three primary supervisors—Bogroff, Jackson,
and John Fusco, who substituted for Bogroff during part of
1996—had intentionally discriminated against her. The jury
returned a verdict for the Postal Service, finding that Gal-
damez had not “established by a preponderance of the evi-
dence that her national origin was a motivating factor in any
adverse employment action on the part of her supervisors that
affected the terms and conditions of her employment.” Find-
ing no discrimination, the jury did not reach the specific ques-
tions as to each supervisor’s role. The jurors also submitted
a handwritten note with their verdict stating their unanimous
conviction that the Postal Service had subjected Galdamez to
some “adverse employment action.” The district court denied
Galdamez’s motion for a new trial, and this timely appeal fol-
lowed.
II
Standard of Review
We review the district court’s denial of Galdamez’s new
trial motion for abuse of discretion. Ostad v. Or. Health Scis.
Univ., 327 F.3d 876, 883 (9th Cir. 2003). Standards for
reviewing the district court’s particular decisions are dis-
cussed more fully in each section below.
GALDAMEZ v. POTTER 8261
III
Analysis
A. Motion to Amend the Pretrial Order
Following the close of evidence, Galdamez moved to
amend the pretrial order to include a retaliation claim.
According to Galdamez, evidence emerged at trial that the
Postal Service had subjected her to various retaliatory actions
after Ron Gates, Galdamez’s second official representative in
disciplinary proceedings, told Bogroff that an EEO investiga-
tion might result from the attempt to discipline Galdamez.
The district court, noting that the disciplinary process started
well before Gates made the comment, and thus could not have
been instituted in retaliation for it, denied the motion for lack
of evidence to support the claim.
[1] Galdamez had the burden of showing that an amend-
ment to the pretrial order was necessary to prevent “manifest
injustice.” See Fed. R. Civ. P. 16(e); Byrd v. Guess, 137 F.3d
1126, 1132 (9th Cir. 1998). In evaluating a motion to amend
the pretrial order, a district court should consider four factors:
(1) the degree of prejudice or surprise to the defendants if the
order is modified; (2) the ability of the defendants to cure the
prejudice; (3) any impact of modification on the orderly and
efficient conduct of the trial; and (4) any willfulness or bad
faith by the party seeking modification. Id. We review the dis-
trict court’s denial of the motion for abuse of discretion. Id.
at 1131.
[2] Even if the evidence was sufficient to support a retalia-
tion claim, the district court did not abuse its discretion in
denying the motion. Galdamez had all of the essential evi-
dence she identified in support of the claim well before entry
of the pretrial order. However, she did not file her motion
until after the close of evidence, and thereby deprived the
Postal Service of any opportunity to present additional evi-
8262 GALDAMEZ v. POTTER
dence or examine witnesses on this issue. Had the district
court granted the motion, the Postal Service would have been
able to respond to the retaliation claim only in closing argu-
ment. The Postal Service thus may have been prejudiced by
the modification and would not have been able to cure that
prejudice effectively. See Byrd, 137 F.3d at 1131-32.
[3] We conclude that Galdamez has not shown the requisite
manifest injustice.
B. Mixed Motive Instruction
Galdamez contends that the district court failed to give a
mixed motive instruction despite sufficient evidence.4 The
district court’s formulation of jury instructions is reviewed for
abuse of discretion, as is the sufficiency of the evidence to
support a mixed motive instruction. See Costa v. Desert Pal-
4
Galdamez requested a mixed motive instruction based on Costa v.
Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002) (en banc), aff’d, 539
U.S. 90 (2003). In pertinent part, her requested instruction read:
If you find that the plaintiff’s national origin and/or color was a
motivating factor in the defendant’s treatment of the plaintiff, the
plaintiff is entitled to your verdict, even if you find that the
defendant’s conduct was also motivated by a lawful reason. . . .
The plaintiff is entitled to damages unless the defendant proves
by a preponderance of the evidence that the defendant would
have treated plaintiff similarly even if the plaintiff’s national ori-
gin and/or color had play [sic] no role in the employment deci-
sion.
The district court instead instructed the jury that Galdamez had to estab-
lish two elements by a preponderance of the evidence:
1) That [Galdamez’s] supervisors at the United States Postal Ser-
vice subjected [Galdamez] to adverse employment action that
affected the terms and conditions of [her] employment while she
was the Postmaster in Willamina, and
2) That [Galdamez’s] national origin was a motivating factor in
the supervisors’ decision to subject [her] to that adverse employ-
ment action.
GALDAMEZ v. POTTER 8263
ace, Inc., 299 F.3d 838, 858 (9th Cir. 2002) (en banc), aff’d,
539 U.S. 90 (2003). Whether an instruction misstates the law,
however, is a legal issue reviewed de novo. Id.[4] The evidence in the record was sufficient to support a
mixed motive instruction. See Stegall v. Citadel Broad. Co.,
350 F.3d 1061, 1072 (9th Cir. 2004) (as amended); Costa, 299
F.3d at 858-59. The instruction given was a mixed motive
instruction: It asked the jury whether Galdamez’s national ori-
gin was “a motivating factor,” not the motivating factor, in
the Postal Service’s decision. See 42 U.S.C. § 2000e-2(m)
(emphasis added). The district court declined to instruct the
jury on the affirmative defense that the Postal Service would
have taken the same action in the absence of an impermissible
motivating factor, see 42 U.S.C. § 2000e-5(g)(2)(B), because
the Postal Service never raised it. This was neither an abuse
of discretion, nor a misstatement of the law, because it pre-
served the portion of the mixed motive instruction required by
the evidence, and because omission of the affirmative
defense, if anything, favored Galdamez.
[5] In any event, any instructional error here was more
likely than not harmless. See Swinton v. Potomac Corp., 270
F.3d 794, 805-06 (9th Cir. 2001) (explaining civil harmless
error standard). The jury was instructed that it could find for
Galdamez if her national origin was “a motivating factor” for
her adverse treatment. When presented with a note from
jurors during deliberations, expressing some confusion as to
whether discriminatory animus had to be “the” motivating
factor as opposed to “a” motivating factor, the district court
clarified that “[a] ‘motivating factor’ means that it has to be
at least one of the reasons for any adverse employment
action.” Finally, when asked in the special verdict form
whether Galdamez had proven that her national origin was “a
motivating factor in any adverse employment action on the
part of her supervisors,” the jury answered “No,” but took
pains to include a separate note stating its unanimous conclu-
sion that Galdamez’s supervisors “subjected Ms. [Galdamez]
8264 GALDAMEZ v. POTTER
to adverse employment action.” There was thus a clear find-
ing that discriminatory animus was not “a motivating factor”
in the Postal Service’s decision. In other words, the jury
received a fair approximation of a mixed motive instruction
as it pertained most clearly to Galdamez’s disparate treatment
claim, but resolved the facts against her. Therefore, any error
stemming from the district court’s truncated version of the
mixed motive instruction was more likely than not harmless.
C. Employer Liability for Customer Harassment
[6] Galdamez claims that the district court erroneously
refused to instruct the jury on the Postal Service’s duty to
investigate and remedy actionable harassment by customers
and community members. “A party is entitled to an instruc-
tion about his or her theory of the case if it is supported by
law and has foundation in the evidence.” Jones v. Williams,
297 F.3d 930, 934 (9th Cir. 2002). The district court variously
cited three rationales for its decision: 1) that Title VII does
not provide a “stand-alone” claim for failure to investigate
and remedy racial or national origin harassment by third par-
ties unless that failure itself is motivated by discriminatory
animus; 2) that Galdamez, as a management-level employee,
was responsible for remedying any such harassment herself;
and 3) that the evidence did not support the requested instruc-
tion. We view the first two rationales as conclusions going to
the legal requirements of the claim, and thus review them de
novo, Fireman’s Fund Insurance Companies v. Alaskan Pride
Partnership, 106 F.3d 1465, 1469 (9th Cir. 1997), while we
review the third, evidentiary conclusion for abuse of discre-
tion. See Jones, 297 F.3d at 934.
[7] The district court erred as a matter of both law and fact
in refusing the instruction. An employer may be held liable
for the actionable third-party harassment of its employees
where it ratifies or condones the conduct by failing to investi-
gate and remedy it after learning of it. See, e.g., Little v. Win-
dermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002)
GALDAMEZ v. POTTER 8265
(holding employer liable where, by “failing to take immediate
and effective corrective action,” it “ratified” rape of employee
by potential client); Folkerson v. Circus Circus Enters., Inc.,
107 F.3d 754, 756 (9th Cir. 1997) (“We now hold that an
employer may be held liable for sexual harassment on the part
of a private individual . . . where the employer either ratifies
or acquiesces in the harassment by not taking immediate and/
or corrective actions when it knew or should have known of
the conduct.”).5 This hostile environment theory of employer
liability is grounded in negligence and ratification rather than
intentional discrimination. See Swenson v. Potter, 271 F.3d
1184, 1191-92 (9th Cir. 2001) (citing Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 759 (1998)). Therefore, the district
court applied incorrect law in refusing the instruction based
on its belief that Galdamez had to prove that discriminatory
animus motivated the Postal Service’s failure to act.
[8] The district court also erred in concluding that Gal-
damez’s position as postmaster relieved the Postal Service of
responsibility to investigate and prevent harassment. Title VII
prohibits racial and national origin discrimination by an
employer “against any individual with respect to [her] com-
pensation, terms, conditions, or privileges of employment,”
42 U.S.C. § 2000e-2(a)(1) (emphasis added), and makes no
relevant distinctions between managerial and other employ-
ees. See 42 U.S.C. § 2000e(f) (defining “employee” as “an
individual employed by an employer,” subject to certain
exceptions inapplicable here); see also Little, 301 F.3d at 964(holding employer liable for failing to address rape of
management-level employee). Galdamez is as entitled as any
other employee to the protections of Title VII. The district
court erred to the extent that it concluded otherwise.
5
Although these cases involved hostile work environments created by
third-party sexual harassment, the same analysis applies to instances of
racial or national origin harassment. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 n.10 (2002); see also 29 C.F.R. § 1606.8(e).
8266 GALDAMEZ v. POTTER
Finally, the evidence was sufficient to support jury instruc-
tions on both a hostile work environment and employer liabil-
ity. To make out a hostile work environment claim, Galdamez
must show (1) that she was subjected to verbal or physical
conduct based on her race or national origin; (2) that the con-
duct was unwelcome; and (3) that the conduct was “suffi-
ciently severe or pervasive to alter the conditions of [her]
employment and create an abusive work environment.”
Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.
2003). In order to satisfy the third element of this test, she
must show that her work environment was both subjectively
and objectively hostile. See McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1113 (9th Cir. 2004). In making the objective
determination, we look to all of the circumstances, including
the frequency, severity, and nature (i.e., physically threatening
or humiliating as opposed to merely verbally offensive) of the
conduct. See Vasquez, 349 F.3d at 642. The required severity
of the conduct varies inversely with its pervasiveness and fre-
quency. McGinest, 360 F.3d at 1113. Finally, the objective
hostility of the environment must be considered “from the
perspective of a reasonable person belonging to the racial or
ethnic group of the plaintiff.” Id. at 1115.
[9] Properly instructed as to these requirements, a reason-
able jury could have found that Galdamez experienced a hos-
tile work environment based on her national origin. Galdamez
began to receive hostile comments from customers and other
residents based on her race, accent, and national origin almost
immediately upon taking the job in Willamina. Several cus-
tomers, including the mayor, expressed displeasure with hav-
ing a Hispanic postmaster or criticized her accented English.
One local newspaper referred to Galdamez’s “thick accent
from her native Honduras” in explaining that she had not
“made friends in some quarters” and was the object of an
ouster campaign. Supervisor John Fusco made notes of a con-
versation with the mayor in which he referred to “culture” and
“prejudice,” but could not recall why at the time of trial.
GALDAMEZ v. POTTER 8267
[10] A reasonable jury also could have found that the com-
munity’s treatment of Galdamez was both subjectively and
objectively severe or pervasive. Galdamez received threats to
her life and safety, including an anonymous letter promising
to “get rid of you foreigner.” A customer warned Galdamez
that Willamina was a “redneck town,” and that “[e]veryone”
would get together and “come and kill [her]” if she persisted
in trying to enforce postal regulations. Galdamez’s subordi-
nates also recalled hearing of at least two other similar threats,
and one postal worker gave Galdamez a list of townspeople
who would “not think twice” about “get[ting] together and
kill[ing]” her. Greenhill, one of the primary organizers of the
mass meeting, told a local newspaper that he did not want
Galdamez to be present because he “didn’t want her tarred
and feathered on the spot [and] didn’t want this to turn into
a public lynching.” Finally, Galdamez’s car was vandalized in
the post office lot, an act that Ron Gates thought may have
been racially motivated. Other Postal Service employees con-
firmed at trial that they thought Galdamez’s difficulties
stemmed from community prejudice.
[11] These comments and acts took place over the course
of three years, and included not only offensive remarks, but
also racially charged references to potential mob violence,
indirect threats to physical safety, and property damage. In
context, it is somewhat difficult to disentangle the acts explic-
itly based on Galdamez’s national origin from those that may
have had some other motivation.6 Nonetheless, considering all
6
We recently followed the Third Circuit in concluding that there are no
“talismanic expressions” of racial animus necessary to sustain a harass-
ment claim, and recognized that racially charged “code words” may pro-
vide evidence of discriminatory intent by “send[ing] a clear message and
carry[ing] the distinct tone of racial motivations and implications.”
McGinest, 360 F.3d at 1117 (quoting Aman v. Cort Furniture Rental
Group, 85 F.3d 1074, 1083 (3d Cir. 1996)). The word “redneck,” a term
that appears several times in the record of this case, can suggest racial hos-
tility. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 666 (6th Cir.
1999) (“The evidence demonstrates that Quanex management adopted the
8268 GALDAMEZ v. POTTER
of the circumstances, a jury reasonably could have found that
Galdamez was subjected to unwelcome, severe, and pervasive
national origin harassment that affected the terms and condi-
tions of her employment, see Vasquez, 349 F.3d at 642, and
that the environment was both subjectively and objectively
abusive when considered from the perspective of a reasonable
person of her race and national origin. Cf. McGinest, 360 F.3d
at 1115-19 (reversing summary judgment against plaintiff
subjected to numerous offensive racial comments and one
potentially injurious situation over the course of several
years). The evidence thus supported a hostile work environ-
ment instruction.
[12] The evidence also supported an instruction on the
Postal Service’s potential liability for failing to investigate
and remedy the harassment. Once the Postal Service actually
knew (or reasonably should have known) about what Gal-
damez was experiencing, it was required to “undertak[e]
remedial measures ‘reasonably calculated to end the harass-
ment.’ ” McGinest, 360 F.3d at 1120 (quoting Ellison v.
Brady, 924 F.2d 872, 882 (9th Cir. 1991)). The “reasonable-
attitude that everyone knew the plant was a ‘redneck’ environment, and
that therefore, racially offensive conduct taking place there was not
harassment, but conduct African-American employees had to accept as
part of life at Quanex.”); United States v. Pasadena Indep. Sch. Dist., No.
H-83-5107, 1987 WL 9919, at *18 (S.D. Tex. Apr. 18, 1987) (finding that
city’s reputation as “a white ‘redneck’ or racist community” had discour-
aged minority applicants from seeking jobs in school district); but see Syp-
niewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 257-58 (3d Cir.
2002) (noting that in certain contexts “redneck” may “imply . . . racial
intolerance and bigotry,” but concluding that a t-shirt bearing the word
was unrelated to the specific racial harassment at issue). The repeated ref-
erences in the record here to Willamina being a “redneck” town, in combi-
nation with Greenhill’s public statements evoking a potential lynching,
convey an atmosphere of racial hostility, and thus could support a reason-
able inference that some community members’ actions were based on Gal-
damez’s race or national origin, notwithstanding the absence in some
instances of “talismanic” language to that effect.
GALDAMEZ v. POTTER 8269
ness” of such remedial measures would depend on the Postal
Service’s ability to stop the harassment and to deter potential
harassers, as well as the promptness of the response. Id.[13] Galdamez testified that she informed her superiors
almost immediately after taking office in 1994 of customer
harassment based on her accent and national origin.7 When
Galdamez first complained of the harassment, Bogroff told
her Willamina was a “redneck town” and that she was
“tough” enough to deal with the treatment. Jackson testified
that postmasters were expected to “grin and bear” racist
remarks and harassment, at least up to the point where law
enforcement involvement became necessary. These same
supervisors also testified that they did not know whether they
had any specific obligation to look into racial harassment, or
special procedures for confronting it, as they did in the con-
text of sexual harassment. This evidence suggests that the
Postal Service’s response to Galdamez’s difficulties was lim-
ited at best.
[14] On the other hand, there was some evidence that Gal-
damez’s superiors did respond, specifically by offering Gal-
damez a position in a town with a larger Hispanic community
and by arranging for a diversity specialist to inquire into the
situation. They did so, however, only in conjunction with
imposing formal discipline against Galdamez. Weighing all
the evidence, a reasonable jury could have found that the
harassment was actionable, that management-level Postal Ser-
vice employees knew or should have known about it while it
was happening, and that they nonetheless failed to take steps
reasonably calculated to end and deter it, at least to the extent
7
Other testimony suggested that management-level Postal Service per-
sonnel first became aware of the harassment in 1997. An employer’s lia-
bility runs only from the time it knew or should have known of the
conduct. Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001). Given
the conflicting testimony in the record, this should be a factual question
for the jury.
8270 GALDAMEZ v. POTTER
such steps were within their power. See McGinest, 360 F.3d
at 1120; Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).
The conflicting testimony as to the timing and extent of the
Service’s response clearly presents issues of fact that could be
resolved either way. In this light, it was an abuse of discretion
to deny Galdamez an instruction on this theory of her case.
[15] These errors were not harmless. In this circuit we pre-
sume prejudice where civil trial error is concerned, and the
burden shifts to the Postal Service to demonstrate “that it is
more probable than not that the jury would have reached the
same verdict” had it been properly instructed. Obrey v. John-
son, 400 F.3d 691, 701 (9th Cir. 2005). The jury was
instructed to determine only whether Galdamez’s superiors
acted with discriminatory intent in disciplining her. The jurors
never were told that the Postal Service also could be liable for
actionable harassment by third parties if it failed to take rea-
sonable steps within its power to address the problem. More-
over, the jury might have felt that there was some
discriminatory aspect of the case it could not reach, as evi-
denced by its handwritten addendum to the special verdict
form emphasizing that the Postal Service had subjected Gal-
damez to some adverse employment action. Properly
instructed, the jury may well have held the Postal Service lia-
ble. Accordingly, we reverse and remand for a new trial on
this claim.8
8
We do not suggest that a new trial be held on all issues raised in the
previous trial, but only on the harassment claim and the theory of
employer liability that did not go to the jury. In appropriate situations, we
may confine a new trial to particular issues. See, e.g., Ward v. City of San
Jose, 967 F.2d 280, 284-85 (9th Cir. 1992); see also 11 Charles Alan
Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Proce-
dure § 2814, at 158 (2d ed. 1995). Here the issues relating to whether Gal-
damez was subjected to customer harassment and whether her employer
is liable for failing to investigate her allegations are “so distinct and sepa-
rable from others that a trial of [those] alone may be had without injus-
tice.” Gasoline Prods. Co., Inc. v. Champlin Refining Co., 283 U.S. 494,
500 (1931).
GALDAMEZ v. POTTER 8271
D. The Verdict Form’s Emphasis on Named Supervisors
[16] Galdamez raised several objections to the special ver-
dict form, which required jurors to specify which of three
named supervisors intentionally discriminated against her.
“As long as the questions are adequate to obtain a jury deter-
mination of all the factual issues essential to judgment, the
trial court has complete discretion as to the form of the special
verdict.” Saman v. Robbins, 173 F.3d 1150, 1155 (9th Cir.
1999).
[17] Question 1 on the special verdict form provided:
Has Plaintiff Arlene Graves (Galdamez) established
by a preponderance of the evidence that her national
origin was a motivating factor in any adverse
employment action on the part of her supervisors
that affected the terms and conditions of her employ-
ment while she was the postmaster in Willamina?
Yes No X
It was only if the answer to that question was “Yes” that the
jury was to specify in Question 2 whether particular supervi-
sors had intentionally discriminated against her. Thus, the jury
having found that her national origin was not a motivating
factor in any adverse employment action, any deficiency in
the form of Question 2 was irrelevant here.9
9
We emphasize that our holding is confined to these narrow facts.
Although this is not the case here, it is conceivable that a question asking
jurors to identify discrimination on the part of individual supervisors could
inadvertently limit or otherwise influence the jury’s consideration of other
questions, including that of liability on the part of the employer. Moreover,
had Galdamez’s harassment claim also gone to the jury, the special verdict
form would have been improper with respect to that claim, because it
would have precluded a finding in her favor on the Postal Service’s liabil-
ity for third-party harassment. Finally, such a special verdict form would
have been inappropriate had this case involved an allegation that one indi-
8272 GALDAMEZ v. POTTER
E. Changes to the Special Verdict Form After Closing
Argument
[18] Galdamez contends that the district court erred by
changing the verdict form during deliberations, thereby
depriving her of the opportunity to address the verdict form
in closing arguments. The district court may have abused its
discretion by changing the verdict form after submitting the
case to the jury. See Ruvalcaba v. City of Los Angeles, 167
F.3d 514, 521-23 (9th Cir. 1999); see also Landes Const. Co.,
Inc. v. Royal Bank of Can., 833 F.2d 1365, 1374 (9th Cir.
1987). Any such error, however, was harmless. Galdamez
does not explain how her closing argument would have been
different had the substance of the revised form been disclosed
in time for her to make adjustments. The only logical adjust-
ment she could have made would have been to direct her
arguments to the actions of the three supervisors named in the
special verdict form. In fact, she devoted the bulk of her clos-
ing argument to the actions of two of these supervisors, sug-
gesting that the argument she actually made was basically the
vidual’s discriminatory animus infected a more complex decision-making
process. Title VII may still be violated where the ultimate decision-maker,
lacking individual discriminatory intent, takes an adverse employment
action in reliance on factors affected by another decision-maker’s discrim-
inatory animus. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228,
232-35 (1989) (describing process by which the employer’s “Policy
Board,” informed by various comments from partners, some of which
demonstrated an illegal bias based on sex, took an adverse employment
action); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (holding
that company decisionmaker that acts as “the conduit of [a lower-level
supervisor’s] prejudice — his cat’s paw” — is liable under Title VII).
These are but three examples of cases in which the district court proba-
bly would have abused its discretion by focusing the jury on named indi-
viduals. Given the various ways employers structure their personnel
decisions, a special verdict form such as the one used here is unlikely to
be illuminating, and in many cases may mislead or confuse the jury or oth-
erwise lead to error. As a general matter, therefore, we discourage the use
of such special verdicts in these cases.
GALDAMEZ v. POTTER 8273
same argument she would have made had the district court
disclosed the substance of the special verdict in a more timely
fashion. See Ruvalcaba, 167 F.3d at 522-23. Therefore, we
must conclude that any error in the timing of disclosure was
harmless.
IV
Conclusion
For the foregoing reasons, the district court’s denial of Gal-
damez’s motion for a new trial is AFFIRMED in part,
REVERSED in part, and REMANDED for a new trial on her
hostile work environment claim and the Postal Service’s
potential liability.
Each party shall bear their own costs on appeal.