Michael Conti v. Corporate Services Group

FILED
NOT FOR PUBLICATION
APR 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CONTI, No. 14-35674
Plaintiff-Appellant, D.C. No. 2:12-cv-00245-RAJ
v.
MEMORANDUM*
CORPORATE SERVICES GROUP INC.,
doing business as Channel Services Group,
Inc. doing business as CSG Openline; JAY
LEON, and his marital community,
Defendants-Appellees.
MICHAEL CONTI, No. 14-35711
Plaintiff-Appellee, D.C. No. 2:12-cv-00245-RAJ
v.
CORPORATE SERVICES GROUP INC.,
doing business as Channel Services Group,
Inc. doing business as CSG Openline; JAY
LEON, and his marital community,
Defendants-Appellants.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted April 4, 2017
Seattle, Washington
Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,** Chief
District Judge.
1. Plaintiff appeals the district court’s denial of his Rule 60(b) motion to
modify the jury verdict to make Leon jointly and severally liable for the entirety of
the awarded compensatory damages. The district court did not abuse its discretion
in denying Plaintiff’s motion. See Toth v. Trans World Airlines, Inc., 862 F.2d
1381, 1387 (9th Cir. 1988). The district court reasonably concluded that Plaintiff’s
claimed injuries of lost wages and emotional damages were not “indivisible” and
thus Wash. Code Rev. 4.22.030, assigning joint and several liability, did not apply.
2. On de novo review, we affirm the district court’s denial of Defendants’
Rule 50(a) motion for judgment as a matter of law. See Lakeside-Scott v.
Multnomah County, 556 F.3d 797, 802 (9th Cir. 2009). The jury did not need to
rely on speculation to conclude that Defendants took adverse employment actions
against Plaintiff on the basis of his national origin. Id. at 803. Plaintiff produced
evidence tending to show Defendants’ “proffered justifications ha[d] no basis in
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
2
fact, [were] unreasonable grounds upon which to base [the adverse employment
actions], or were not motivating factors in employment decisions for other
similarly-situated employees.” Griffith v. Schnitzer Steel Indus., 115 P.3d 1065,
1070 (Wash. Ct. App. 2005). Plaintiff also carried his burden of production to
show defendant Leon was aware of Plaintiff’s national origin through Leon’s own
testimony.
3. We also affirm the district court’s conclusion that Defendants were not
entitled to judgment as a matter of law as to their “same-decision defense” under
Washington’s Law Against Discrimination. The jury found that Defendants would
have taken the same adverse employment actions in the absence of discriminatory
motives under the “preponderance of the evidence” standard appropriate for federal
law. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003). However, the jury was
never asked whether Defendants had carried their burden to show the same
affirmative defense under state law, which is “clear and convincing evidence.”
Davis v. Dep’t of Labor & Indus., 615 P.2d 1279, 1284 (Wash. 1980) (en banc).
Defendants argue that Davis is no longer controlling as to the burden of proof
required in “same-decision” defenses, but they fail to offer any Washington case
law purporting to overrule Davis.
3
4. The district court did not abuse its discretion in awarding attorneys’ fees
and costs. See Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th
Cir. 2009).1
AFFIRMED.
1
Appellant’s motion to take judicial notice [Dkt. 60] of pleadings filed in
King County Superior Court for the State of Washington and United States
Bankruptcy Court in Washington is DENIED.
4