Gerald Morgan v. Pete Buttigieg ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 18 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD MORGAN, No. 21-15979
Plaintiff-Appellant, D.C. No. 2:16-cv-04036-DLR
v.
MEMORANDUM*
PETE BUTTIGIEG, Secretary, U.S.
Department of Transportation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted April 14, 2022
San Francisco, California
Before: CLIFTON and M. SMITH, Circuit Judges, and REISS,** District Judge.
Gerald Morgan, a former electronics technician for the Federal Aviation
Administration, appeals from the district court’s judgment following a jury verdict
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
in favor of the Government in this Title VII retaliation action. We have jurisdiction
under 28 U.S.C. § 1291. We review the district court’s evidentiary rulings and
rulings on motions in limine for abuse of discretion. Branch Banking & Tr. Co. v.
D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017); Roberts v. Coll. of the Desert,
870 F.2d 1411, 1418 (9th Cir. 1988). We affirm.
Morgan sued the Government alleging unlawful Title VII retaliation. His
theory leading up to trial was that the Government reassigned him to a less
desirable position after he told his supervisor that he was considering filing an
Equal Employment Opportunity (“EEO”) complaint based on what he perceived to
be a racially discriminatory comment made to him by a coworker, “is that how you
want to play it?” Before trial, the Government filed a motion in limine (“MIL”)
seeking to preclude Morgan from arguing that his statement to his supervisor was
protected activity for purposes of establishing a prima facie retaliation claim.
Morgan responded that the statement was protected “opposition” to unlawful Title
VII discrimination. The district court granted the MIL, concluding that Morgan’s
belief that his coworker’s comment was racially discriminatory was objectively
unreasonable. Morgan was therefore precluded from arguing at trial that any
protected activity occurred before September 24, 2012, the date the parties agree he
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made EEO contact. Following a three-day trial, the jury entered a verdict in favor
of the Government.
1. Morgan contends that he should have been able to argue to the jury
that he engaged in a protected activity before September 24, 2012, by opposing his
coworker’s discriminatory comment. A plaintiff can establish that an employer
violated Title VII’s anti-retaliation provisions through either the (1) the
“opposition” clause, if the adverse employment action occurs because of the
employee’s opposition to an unlawful employment practice, or (2) the
“participation” clause, if it is in retaliation for the employee’s participation in Title
VII's enforcement mechanisms. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir.
1997). Where, as here, a plaintiff claims he engaged in protected opposition, the
plaintiff must demonstrate “a reasonable belief that the employer has engaged in an
unlawful employment practice.” Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006)
(quoting Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994)).
The district court did not abuse its discretion in granting the Government’s
MIL. It is true that Title VII protects an employee’s opposition to perceived
unlawful employment practices, and that the practices need not actually be
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unlawful.1 Freitag, 468 F.3d at 542. But the employee must have a “reasonable
belief that the employer has engaged in an unlawful employment practice.” Id. at
541 (quoting Moyo, 40 F.3d at 984). The district court here was well within its
discretion to conclude that Morgan could not reasonably and in good faith have
believed that his coworker’s isolated comment was discriminatory, let alone an
unlawful employment practice under Title VII.
2. Morgan next argues that the district court improperly admitted a set of
vehicle mileage reports under the business record exception, Fed. R. Evid. 803(6),
to the hearsay rule. There is no merit in this argument. The vehicle mileage reports
were prepared by Morgan’s supervisor near the time of the transaction in the
ordinary course of business, and the circumstances do not indicate a lack of
trustworthiness. See United States v. Scholl, 166 F.3d 964, 978 (9th Cir. 1999). The
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From the outset, the parties and the district court have analyzed Morgan’s
statement to his supervisor under the opposition clause. For the first time in his
reply brief, Morgan suggested that his stated intent to invoke the EEO process
qualifies as a protected activity under both the opposition and the participation
clause. We decline to address whether Morgan’s statement to his supervisor
qualifies as protected “participation” because that argument was not made to the
district court or in the opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999) (“[A]n appellate court will not consider issues not properly raised before
the district court. Furthermore, on appeal, arguments not raised by a party in its
opening brief are deemed waived.”). In any event, we are not persuaded that an
employee’s vague statement that he is “considering filing an EEO complaint,”
absent other facts, is enough in itself to establish protected participation.
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district court has “wide discretion” in deciding whether evidence satisfies Rule
803(6)’s “trustworthiness standard,” and it did not exceed that discretion here. Id.;
see La Porte v. United States, 300 F.2d 878, 880 (9th Cir. 1962).
Morgan’s primary argument that the reports contain inaccuracies,“go[es] to
the weight and not the admissibility of the evidence.” Scholl, 166 F.3d at 978(quoting United States v. Keplinger, 776 F.2d 678, 694 (7th Cir. 1985)). He also
raises a second argument not raised at trial—that an added column in the reports
was created in anticipation of litigation. Morgan did not preserve this argument
below, and the Court will not “review an issue not raised or objected to below
except to prevent a manifest injustice.” United States v. Archdale, 229 F.3d 861 (9th
Cir. 2000). Morgan’s argument is without support in the record, and we see no such
injustice here.
3. Morgan’s final argument is that the district court improperly allowed
the Government to introduce a set of calendars even though the versions introduced
at trial did not match the ones provided to Morgan in pretrial discovery. The district
court did not abuse its discretion here either. The only alterations to the calendars
presented at trial removed references to a car accident and worker’s compensation
claim, evidence of which had been properly excluded pursuant to a pretrial MIL.
Besides, the record suggests that even if Morgan was not provided a copy of the
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redacted calendars before trial, he was made aware of the changes to the exhibit
well in advance. The district court did not abuse its discretion.
4. Finally, although Morgan has not expressly argued that the verdict is
unsupported by substantial evidence, he asks the panel to reverse the judgment and
remand for a new trial. We must uphold the jury’s verdict if it is supported by
substantial evidence—that is, evidence adequate to support the jury’s conclusion.
Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008); Pavao v.
Pagay, 307 F.3d 915, 918 (9th Cir. 2002). The jury’s verdict here was based solely
on its conclusion that Morgan failed to prove he was subjected to an adverse
employment action. Absent any argument from Morgan that the jury’s conclusion is
unsupported by substantial evidence, we see no basis for overturning the verdict.
AFFIRMED.
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