Hosetta Zertuche v. James Gleason ( 2016 )

FILED
NOT FOR PUBLICATION MAR 17 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOSETTA ZERTUCHE, No. 14-15047
Plaintiff-Appellant, D.C. No. 4:11-cv-03691-YGR
v.
MEMORANDUM*
JAMES GLEASON,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted February 11, 2016
San Francisco, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and ADELMAN,** District
Judge.
A jury returned a verdict in favor of defendant James Gleason on plaintiff
Hossetta Zertuche’s First Amendment retaliation claim under 42 U.S.C. § 1983.
Zertuche now appeals (1) the district court’s jury instruction defining a “substantial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
or motivating factor” in relation to her indirect theory of liability and (2) the district
court’s decision to dismiss her punitive damages claim after Zertuche concluded her
case-in-chief.
We affirm the district court because neither decision Zertuche challenges was
prejudicial. On its special verdict, the jury concluded that Zertuche had suffered no
adverse employment action and did not reach the question of whether Gleason’s
actions were a substantial or motivating factor, and thus any error in the substantial
or motivating factor definition was harmless. Chess v. Dovey, 790 F.3d 961, 977 (9th
Cir. 2015). Zertuche contends that the definition was not harmless, arguing that the
verdict question on whether Zertuche suffered an adverse employment decision could
have confused the jury by using language from the substantial and motivating factor
definition, possibly leading it to consider the substantial and motivating factor
definition when determining the adverse employment action question. We disagree
and find that the instructions and verdict were straightforward and not likely to
confuse the jury. Finally, because we affirm the jury’s finding of no liability, any error
the court made in dismissing the punitive damages claim was also harmless. Bulgo v.
Munoz, 853 F.2d 710, 716 (9th Cir. 1988).
AFFIRMED.
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