Andrew Grant v. Marriott Ownership Resorts

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW GRANT; ROBIN REISINGER, No. 19-15129
Plaintiffs-Appellants, D.C. No.
1:16-cv-00451-LEK-RLP
and
SANDRA DENISE KELLY, MEMORANDUM*
Plaintiff,
v.
MARRIOTT OWNERSHIP RESORTS,
INC.; DOES, 1-100,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted July 9, 2020**
Honolulu, Hawaii
Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiffs Andrew Grant and Robin Reisinger sued Marriott Ownership
Resorts, Inc. (“MORI”) alleging employment discrimination. After a nine-day
trial, the jury found MORI not liable. Plaintiffs now appeal the district court’s
refusal to provide a jury instruction on the “cat’s paw” theory of employer liability.
Because the parties are familiar with the facts, we will not recount them here. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
“Failure to submit a proper jury instruction is a question of law reviewable
by this court de novo.” 999 v. C.I.T. Corp., 776 F.2d 866, 871 (9th Cir. 1985).
“Whether there is sufficient evidence to support an instruction is reviewed for
abuse of discretion.” Yan Fang Du v. Allstate Ins. Co., 697 F.3d 753, 757 (9th Cir.
2012).
The proposed cat’s paw instruction would have instructed the jury that
MORI was liable if Xee Her (“Her”), Plaintiffs’ supervisor, was motivated by
Plaintiffs’ race and intended that his actions would cause Plaintiffs to suffer an
adverse employment action, and if Greg Grigaitis (“Grigaitis”), Director of Sales
and Marketing, would not have decided to terminate Plaintiffs in the absence of
Her’s warnings. But this instruction was unnecessary because the evidence at trial
made abundantly clear that Grigaitis, who made the final termination decision, was
not an independent decisionmaker, instead relying on the information Her, the
allegedly discriminatory supervisor, gave him. Witnesses testified that Her issued
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the disciplinary forms that were the basis for Plaintiffs’ terminations and was in
charge of investigating a complaint that plaintiff Grant made another associate feel
threatened. The district court thus did not abuse its discretion in holding that there
was not sufficient evidence that Grigaitis was held out as an independent
decisionmaker to support a cat’s paw instruction.
In any event, the agency-based corporate liability instruction enabled the
jury to adequately consider whether MORI was liable for Plaintiffs’ terminations
based on Her’s allegedly discriminatory conduct. See Jones v. Williams, 297 F.3d
930, 935 (9th Cir. 2002) (holding district court did not abuse its discretion where it
offered “other instructions that enabled the jury to consider [the] issue
adequately”). Indeed, Plaintiffs’ own counsel argued that instruction enabled the
jury to find MORI liable for Her’s discriminatory actions in orchestrating the
terminations.
Because the district court properly exercised its discretion in finding there
was not a sufficient evidentiary basis for the cat’s paw instruction, and because it
provided an instruction that MORI was liable for its agents’ conduct, the judgment
is affirmed.
AFFIRMED.
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