Obrey v. Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD L. OBREY, JR., 

Plaintiff-Appellant, No. 03-16849

v. D.C. No.

HANSFORD T. JOHNSON, in his  CV-02-00033-

capacity as the Acting Secretary of MLR/LEK

the Navy, OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Hawaii

Manuel L. Real, District Judge, Presiding

Argued and Submitted

November 3, 2004—Honolulu, Hawaii

Filed March 4, 2005

Before: Melvin Brunetti, Susan P. Graber, and Jay S. Bybee,

Circuit Judges.

Opinion by Judge Bybee

2607

2610 OBREY v. JOHNSON

COUNSEL

Clayton C. Ikei, Honolulu, Hawaii, for the plaintiff-appellant.

E. Roy Hawkens, Jeffrey Clair, Appellate Staff Civil Divi-

sion, Department of Justice, Washington, D.C., for the

defendant-appellee.

OBREY v. JOHNSON 2611

OPINION

BYBEE, Circuit Judge:

This appeal requires us to clarify and apply the harmless

error test applicable to civil trials in our circuit.

I.

Appellant, Ronald L. Obrey, Jr., originally filed suit for

declaratory and injunctive relief, alleging that he was twice

denied a promotion to the position of Production Resource

Manager at the Pearl Harbor Naval Shipyard (hereinafter, the

“Shipyard”) on the basis of his race in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seq. (2000). Obrey alleged that the defendant, the

Secretary of the Navy, had engaged in a pattern or practice of

discriminating against qualified candidates of Asian-Pacific

ancestry in favor of Caucasian applicants for senior manage-

ment positions at the Shipyard. In a pre-trial hearing, the dis-

trict court issued several evidentiary rulings excluding the

principal evidence supporting Obrey’s pattern or practice

claim. After a jury trial, judgment was entered against Obrey.

The district court’s evidentiary rulings form the basis for this

appeal.

The Pearl Harbor Shipyard is one of four Navy shipyards

operated by the Navy organizational unit, the Naval Sea Sys-

tems Command. Obrey, an Asian-Pacific Islander, has, from

1995-2002, worked as a Project Superintendent at the Ship-

yard. In 2002, Obrey applied for the Production Resource

Manager’s (“PRM”) position at the Shipyard, a position

which carried a promotion from his current grade level of

GM-14 to a GS-15 grade. Nine other individuals also applied.

Pursuant to Navy guidelines, the applicants were rated in

three categories, including relevant knowledge, ability to plan

and manage resources, and ability to perform supervisory

management functions. On the basis of this rating, Obrey was

2612 OBREY v. JOHNSON

ranked sixth out of ten applicants during the first round of hir-

ing, and fifth out of the eight competitive applicants in the

second round. The PRM position was subsequently offered to

Ernest Chamberlain in the first round of hiring, and then

David Reilly in the second, both of whom are Caucasian

males and both of whom declined the offer. Recruitment was

then cancelled.

In this appeal, Obrey claims that the district court abused

its discretion in failing to admit three pieces of evidence: (1)

a statistical report showing a correlation between race and

promotion at the Shipyard; (2) the testimony of a Shipyard

employee who recalled conversations in which Shipyard offi-

cials expressed discriminatory bias toward the local Asian-

Pacific Islanders; and (3) the anecdotal testimony of three

Shipyard employees who also believed they had suffered race

discrimination at the Shipyard. The Navy argues that the

exclusion was proper but that, even if the district court erred,

the error was harmless. Addressing each evidentiary ruling in

turn, we find that the district court’s decision excluding this

evidence was an abuse of discretion as to all. We further con-

clude that the error was not harmless.

A.

The district court denied Obrey’s motion in limine to admit

statistical evidence regarding hiring practices for senior-level

positions at the Shipyard. The hiring practice evidence at

issue was compiled through discovery and included the hiring

history of the Pearl Harbor Shipyard for the period 1999-

2002. Obrey retained James Dannemiller, a statistician with

SMS Research & Marketing Services, Inc., to analyze this

data and provide a statistical report and opinion. Dannemil-

ler’s report concludes that “[t]here is no statistical evidence

. . . that the selection process for GS13 through GS15 posi-

tions between 1999 and 2002 were unbiased with respect to

race.”

OBREY v. JOHNSON 2613

The government challenged the admission of Dannemiller’s

report on the ground that it was so incomplete that it was

inadmissible as irrelevant, unfairly prejudicial, and unreliable.

See FED. R. EVID. 402, 403, 702. In the government’s view,

the statistical analysis was inadmissible because it failed to

account for the relative qualifications of the applicants being

studied. The district court denied Obrey’s motion to admit

Dannemiller’s statistical evidence. Although the court did not

specify its reasons, presumably its ruling was based on the

perceived irrelevance and unreliability of the statistics. While

we review evidentiary rulings for an abuse of discretion,

Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th

Cir.), amended by, 773 F.2d 1049 (9th Cir. 1985), neither of

these reasons warrants exclusion in this case.

Obrey’s claim was premised on the theory that the Navy

had engaged in a pattern or practice of discriminatory hiring

practices. Employment discrimination claims styled in this

manner are governed by “controlling legal principles that are

relatively clear.” Int’l Bhd. of Teamsters v. United States, 431

U.S. 324, 335 (1977). Obrey’s theory of discrimination was

that the Navy regularly and purposefully treated the local

Asian-Pacific Islanders less favorably than white persons by

refusing to promote minority group members on an equal

basis. His suit thus raised as factual issues “whether there was

a pattern or practice of such disparate treatment and, if so,

whether the differences were ‘racially premised.’ ” Id. at 335

(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792,

805 n.18 (1973)).

As the plaintiff, Obrey bore the initial burden of making

out a prima facie case of discrimination. Cooper v. Fed.

Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). And,

because he alleged a systemwide pattern or practice of resis-

tance to the full enjoyment of Title VII rights, Obrey ulti-

mately had to prove “more than the mere occurrence of

isolated or ‘accidental’ or sporadic discriminatory acts.”

Teamsters, 431 U.S. at 336. He had to establish, by a prepon-

2614 OBREY v. JOHNSON

derance of the evidence, that racial discrimination was the

Navy’s “standard operating procedure—the regular rather

than the unusual practice.” Id. By “demonstrating the exis-

tence of a discriminatory pattern or practice,” Obrey would

“establish[ ] a presumption that [he] had been discriminated

against on account of race.” Cooper, 467 U.S. at 875 (citing

Franks v. Bowman Transp. Co., 424 U.S. 747, 772 (1976)).

[1] In a case in which the plaintiff has alleged that his

employer has engaged in a “pattern or practice” of discrimina-

tion, “[s]tatistical data is relevant because it can be used to

establish a general discriminatory pattern in an employer’s

hiring or promotion practices. Such a discriminatory pattern

is probative of motive and can therefore create an inference

of discriminatory intent with respect to the individual employ-

ment decision at issue.” Diaz v. Am. Tel. & Tel., 752 F.2d

1356, 1363 (9th Cir. 1985);1 see also McDonnell Douglas,

411 U.S. at 805 n.19 (“The District Court may, for example,

determine, after reasonable discovery that the (racial) compo-

sition of defendant’s labor force is itself reflective of restric-

tive or exclusionary practices.”) (internal quotation marks

omitted); Coral Constr. Co. v. King County, 941 F.2d 910,

918 (9th Cir. 1991) (“[F]or purposes of Title VII, ‘[w]here

gross statistical disparities can be shown, they alone may in

a proper case constitute prima facie proof of a pattern or prac-

tice of discrimination.’ ”) (quoting Hazelwood Sch. Dist. v.

United States, 433 U.S. 299, 307-08 (1977)); Diaz, 752 F.2d

at 1363 (“In some cases, statistical evidence alone may be

sufficient to establish a prima facie case. . . . Even when not

sufficient to establish a prima facie case, statistical evidence

is helpful in showing that an employer’s articulated reason for

the employment decision is pretextual . . . .” (citations omitted)).2

1

The Navy argues that Obrey abandoned his pattern or practice claim

at trial. If Obrey did so, it was because the trial court excluded his evi-

dence. Any abandonment was compelled and was not a waiver of the

claim.

2

The Supreme Court has suggested on several occasions that a statistical

comparison is a valuable tool with which to evaluate a claim of employ-

OBREY v. JOHNSON 2615

Obrey’s statistical evidence was not rendered irrelevant

under Rule 402 simply because it failed to account for the rel-

ative qualifications of the applicant pool. See FED. R. EVID.

402 (“All relevant evidence is admissible, except as otherwise

provided [by law]. Evidence which is not relevant is not

admissible.”) A statistical study may fall short of proving the

plaintiff’s case, but still remain relevant to the issues in dis-

pute. The Dannemiller study may be relevant, and therefore

admissible, even if it is not sufficient to establish Obrey’s

prima facie case or a claim of pretext. Thus, objections to a

study’s completeness generally go to “the weight, not the

admissibility of the statistical evidence,” Mangold v. Cal.

Pub. Utils. Comm’n, 67 F.3d 1470, 1476 (9th Cir. 1995), and

should be addressed by rebuttal, not exclusion, Teamsters,

431 U.S. at 340. As the Court has pointed out,

Statistics showing racial or ethnic imbalance are pro-

bative . . . because such imbalance is often a telltale

sign of purposeful discrimination; . . . . Consider-

ations such as small sample size may, of course,

detract from the value of such evidence, and evi-

dence showing that the figures for the general popu-

lation might not accurately reflect the pool of

qualified job applicants would also be relevant.

Teamsters, 431 U.S. at 339-40 n.20 (citations omitted); see

also Bazemore v. Friday, 478 U.S. 385, 400 (1986) (per

curiam) (“Normally, failure to include variables will affect the

analysis’ probativeness, not its admissibility.”) (Brennan, J.,

concurring in part); Hemmings v. Tidyman’s Inc., 285 F.3d

1174, 1188-89 (9th Cir. 2002) (“[T]he law does not require

ment discrimination. See, e.g., Furnco Constr. Corp. v. Waters, 438 U.S.

567, 580 (1978) (district court entitled to consider the racial mix of the

workforce); Teamsters, 431 U.S. at 339 (“[O]ur cases make it unmistak-

ably clear that statistical analyses have served and will continue to serve

an important role in cases in which the existence of discrimination is a dis-

puted issue.”) (internal quotation marks omitted).

2616 OBREY v. JOHNSON

the near-impossible standard of eliminating all possible non-

discriminatory factors. . . . We cannot say that the exclusion

of preferences, individual qualifications, and education ren-

dered the data set so incomplete ‘as to be irrelevant.’ ”) (quot-

ing Bazemore, 478 U.S. at 400) (emphasis in original); cert.

denied, 537 U.S. 1110 (2003); Maitland v. Univ. of Minn.,

155 F.3d 1013, 1017 (8th Cir. 1998) (“[A] regression analysis

does not become inadmissible as evidence simply because it

does not include every variable that is quantifiable and may

be relevant to the question presented. . . . [I]t is for the finder

of fact to consider the variables that have been left out of an

analysis, and the reasons given for the omissions, and then to

determine the weight to accord the study’s results . . . .”); Wil-

mington v. J.I. Case Co., 793 F.2d 909, 920 (8th Cir. 1986)

(“Virtually all the inadequacies in the expert’s testimony

urged here by [the defendant] were brought out forcefully at

trial . . . . These matters go to the weight of the expert’s testi-

mony rather than to its admissibility.”).

In some cases, statistical evidence may suffer from serious

methodological flaws and can be excluded, consistent with

the trial court’s “gatekeeping” power, under Rule 702. See

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156-57 (1999);

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90

(1993).3 Factors which may bear on admissibility include: (1)

whether the “scientific knowledge . . . can be (and has been)

tested”; (2) whether “the theory or technique has been sub-

3

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based upon suf-

ficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the prin-

ciples and methods reliably to the facts of the case.

FED. R. EVID. 702.

OBREY v. JOHNSON 2617

jected to peer review and publication”; (3) “the known or

potential rate of error”; and (4) “general acceptance.”

Daubert, 509 U.S. at 593-94. The Rule 702 inquiry is a “flexi-

ble one” whose “overarching subject is the scientific validity

and thus the evidentiary relevance and reliability [ ] of the

principles that underlie a proposed submission.” Id. at 594-95;

see also Kumho Tire, 526 U.S. at 141 (“[T]he test of reliabil-

ity is ‘flexible,’ and Daubert’s list of specific factors neither

necessarily nor exclusively applies to all experts or in every

case.”).

[2] Here, the Dannemiller study is based entirely on statisti-

cal disparities. While we, and other courts, have commented

on the inadequacy of such studies, we have typically done so

in the context of finding insufficient evidence to support a

prima facie case of discrimination, and not to rule those

studies inadmissible for purposes of Rule 702. See, e.g., Cole-

man v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000)

(“Because [the statistics] fail to account for many factors per-

tinent to [the plaintiff], we conclude that the statistics are not

enough to take this case to trial.”); Ottaviani v. State Univ. of

N.Y. at New Paltz, 875 F.2d 365, 370-75 (2d Cir. 1989) (sta-

tistical evidence was not “statistically significant” enough to

establish a prima facie case of discrimination); Gay v. Wait-

ers’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531,

553 (9th Cir. 1982) (“[S]tatistical evidence, standing alone,

was insufficient to establish a prima facie case.”). As a gen-

eral matter, so long as the evidence is relevant and the meth-

ods employed are sound, neither the usefulness nor the

strength of statistical proof determines admissibility under

Rule 702. See Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832,

843 (9th Cir. 2001) (“Rather than disqualify the study because

of ‘incompleteness’ . . . , the district court should examine the

soundness of the methodology employed.”).

[3] In sum, Dannemiller’s study was relevant for what it

purported to analyze: the race of managers selected at the

Shipyard compared to the race of those who applied for mana-

2618 OBREY v. JOHNSON

gerial positions. While, by itself, this cannot constitute proof

that the Navy discriminated against Obrey, see Cooper, 467

U.S. at 876, it should have been admitted for whatever proba-

tive value it had. Since the defendant’s objections to the

admission of Dannemiller’s study went to weight and suffi-

ciency rather than admissibility, we conclude that the district

court abused its discretion when it excluded this evidence.

B.

The district court also excluded the testimony of a single

Shipyard worker, Mr. Toyama, on the grounds that his evi-

dence was irrelevant. FED. R. EVID. 401 (“ ‘Relevant evi-

dence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determina-

tion of the action more probable or less probable than it would

be without the evidence.”). Toyama was expected to testify

that Shipyard officials had informed him that off-yard

employees were rotated to Pearl Harbor on a temporary basis

because the “local” workers “were not good enough” and

“can’t do a good job.”

[4] Toyama’s testimony was plainly relevant to the issue of

whether the defendant preferred off-yard, predominantly Cau-

casian, workers over the “local” Asian-Pacific Islanders. We

have observed that “evidence that the defendant has made dis-

paraging remarks about the class of persons to which plaintiff

belongs[ ] may be introduced to show that the defendant har-

bors prejudice toward that group.” Lam v. Univ. of Haw., 164

F.3d 1186, 1188 (9th Cir. 1999) (internal quotation marks

omitted). It tends to show “a defendant’s discriminatory state

of mind.” Id.4

4

The Navy argues that these comments were not directed at the “locals”

—meaning the Asian-Pacific Islanders—but were critical of the general

efforts of all Navy employees at the Shipyard. The inferences to be drawn

from these comments should be resolved by a jury.

OBREY v. JOHNSON 2619

[5] Toyama’s testimony was also relevant to whether the

Navy’s proffered race-neutral reasons for preferring off-yard

workers was a pretext for unlawful race discrimination. Obrey

asserts that Toyama also would have challenged the Navy’s

claim that off-yard managers were more capable of perform-

ing their tasks within the Shipyard’s budget by demonstrating

that the imported managers were funded by budgeted funds

separate and apart from the Shipyard’s budget. According to

Obrey, this testimony would have cast doubt on the Navy’s

explanation by demonstrating that the off-yard managers

exerted no effect whatsoever on the Shipyard’s budget.

[6] Because Toyama’s testimony tended to make the exis-

tence of discriminatory bias and pretext more probable than

it would be without his testimony, we find that the district

court abused its discretion by excluding this evidence.

C.

The district court also excluded the testimony of three

Shipyard workers, Kawachi, Pestana and Tai See, who were

prepared to testify that the Shipyard discriminated against

them on the basis of race when it failed to select them for

supervisory positions. The court found that the testimony at

issue would require the jury to assess the discrimination

claims of each of the three proposed witnesses by, essentially,

conducting three abbreviated employment discrimination tri-

als. The court concluded that the testimony should be

excluded on the basis of Federal Rule of Evidence 403, pre-

sumably because considerations of undue delay and waste of

time outweighed its probative value. See FED. R. EVID. 403

(“Although relevant, evidence may be excluded if its proba-

tive value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”).

[7] Like statistical evidence, anecdotal evidence of past dis-

crimination can be used to establish a general discriminatory

2620 OBREY v. JOHNSON

pattern in an employer’s hiring or promotion practices. While

such evidence might prove inadmissible in the typical case of

individual discrimination, in a case involving a claim of dis-

criminatory pattern or practice “the combination of convinc-

ing anecdotal and statistical evidence is potent.” Coral

Constr. Co., 941 F.2d at 919. It is commonplace that a plain-

tiff attempting to establish a pattern or practice of discrimina-

tory employment will present some anecdotal testimony

regarding past discriminatory acts. See, e.g., Rossini v. Ogilvy

& Mather, Inc., 798 F.2d 590, 604 (2d Cir. 1986) (“In evalu-

ating all of the evidence in a discrimination case, a district

court may properly consider the quality of any anecdotal evi-

dence or the absence of such evidence.”); Coates v. Johnson

& Johnson, 756 F.2d 524, 532 (7th Cir. 1985) (“The plain-

tiffs’ prima facie case will thus usually consist of statistical

evidence demonstrating substantial disparities in the applica-

tion of employment actions as to minorities and the unpro-

tected group, buttressed by evidence of . . . specific instances

of discrimination.”); Valentino v. United States Postal Serv.,

674 F.2d 56, 69 (D.C. Cir. 1982) (“[W]hen the statistical evi-

dence does not adequately account for the diverse and special-

ized qualifications necessary for (the positions in question),

strong evidence of individual instances of discrimination

becomes vital to the plaintiff’s case.”) (internal quotation

marks omitted); Garcia v. Rush-Presbyterian-St. Luke’s Med.

Ctr., 660 F.2d 1217, 1225 (7th Cir. 1981) (“We find very

damaging to plaintiffs’ position the fact that not only was

their statistical evidence insufficient, but that they failed com-

pletely to come forward with any direct or anecdotal evidence

of discriminatory employment practices by defendants. Plain-

tiffs did not present in evidence even one specific instance of

discrimination.”).

[8] We recognize, however, that the district court retains

broad discretion to determine whether the probative value of

the evidence at issue is substantially outweighed by consider-

ations of “undue delay, waste of time, or needless presenta-

tion of cumulative evidence.” FED. R. EVID. 403; see also R.B.

OBREY v. JOHNSON 2621

Matthews, Inc. v. Transamerica Transp. Servs., Inc., 945 F.2d

269, 272 (9th Cir. 1991) (“Trial judges have wide discretion

to exclude evidence given their presence at the trial and

because the considerations arising under Rule 403 are ‘sus-

ceptible only to case-by-case determinations, requiring exami-

nation of the surrounding facts, circumstances, and issues.’ ”)

(quoting United States v. Layton, 767 F.2d 549, 554 (9th Cir.

1985)). Nevertheless, none of the testimony that the appellant

attempted to offer into evidence so clearly involved delay that

was “undue” or a “waste of time” or was cumulative of other

evidence that it was excludable. Rather, the testimony was

offered to show that the defendant had a discriminatory

motive when it denied his promotion because it had unlaw-

fully rejected other applicants in circumstances similar to his,

and tended to support his pattern or practice theory. While the

jury naturally has to determine the credibility of witness testi-

mony in order to assess the weight it should be accorded, this

is not the sort of undue delay and waste of time that the Rules

contemplate.

[9] We acknowledge that the trial court was properly con-

cerned with the prospect of mini-trials on the witnesses’ own

claims of discrimination. The trial court should have first

addressed these concerns with the parties through other, less

restrictive means. On balance, we believe that this proposed

testimony was likely to be relevant, and Rule 403 consider-

ations do not warrant exclusion in this case. Consequently, we

find that the district court abused its discretion when it

excluded this testimony. On remand, the district court, of

course, will retain discretion to decide that the witnesses’

claims so overwhelm the issues in the trial that their testimony

must be excluded under Rule 403.

II.

[10] Turning to the question of harmless error, we note, ini-

tially, that judicial error alone does not mandate reversal.

Rather, in order to reverse, we must find that the error

2622 OBREY v. JOHNSON

affected the substantial rights of the appellant. See FED. R.

EVID. 103(a) (“Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right

of the party is affected . . . .”); FED. R. CIV. P. 61 (“The court

at every stage of the proceeding must disregard any error or

defect in the proceeding which does not affect the substantial

rights of the parties.”). In other words, we require a finding

of prejudice. See Kisor v. Johns-Manville Corp., 783 F.2d

1337, 1340 (9th Cir. 1986). Although frequently termed a

“harmless error” analysis, this inquiry turns on the distinction

between the burden of proof required in civil and criminal tri-

als: “Just as the verdict in a civil case need only be more

probably than not true, so an error in a civil trial need only be

more probably than not harmless.” Haddad v. Lockheed Cal.

Corp., 720 F.2d 1454, 1459 (9th Cir. 1983).

[11] In a somewhat contradictory fashion, however, we

have formulated two variations of the test for prejudice in

civil cases. In Haddad, we held that the reviewing court must

find prejudice unless it concludes that the verdict is “more

probably than not untainted by the error.” Id. Purporting to

restate the standard set forth in Haddad, we later wrote in

Kisor, that “[t]o reverse, we must say that more probably than

not, the error tainted the verdict.” Kisor, 783 F.2d at 1340

(citing Haddad, 720 F.2d at 1459). As we noted in Pau v.

Yosemite Park & Curry Co., 928 F.2d 880, 888 & n.2 (9th

Cir. 1991), and Ortega v. O’Connor, 50 F.3d 778, 780 n.2

(9th Cir. 1995), this restatement effected more than a mere

semantic change. Rather, “in a close case, where the review-

ing court is uncertain of the effect of an evidentiary error on

the jury’s verdict, these two standards create contradictory

presumptions.” Id. Under Haddad’s formulation, we presume

prejudice; under Kisor, we appear to presume the opposite.

Pau, 928 F.2d at 888 n.2.

Making matters worse, we have inconsistently applied

Haddad and Kisor. We have cited both without recognizing

the contradiction. See, e.g., Baker v. Delta Air Lines, Inc., 6

OBREY v. JOHNSON 2623

F.3d 632, 639 (9th Cir. 1993) (quoting Kisor and noting its

reliance on Haddad); Cassino v. Reichhold Chems., Inc., 817

F.2d 1338, 1345 (9th Cir. 1987). We have applied one or the

other without recognizing or purporting to resolve the contra-

diction. See, e.g., Blind-Doan v. Sanders, 291 F.3d 1079,

1082 (9th Cir. 2002) (restating the standard a la Kisor and cit-

ing Pau); Tennison v. Circus Circus Enters., 244 F.3d 684,

688 (9th Cir. 2001) (same); Beachy v. Boise Cascade Corp.,

191 F.3d 1010, 1015-16 (9th Cir. 1999) (quoting Haddad);

Oliver v. United States, 921 F.2d 916, 920 (9th Cir. 1990)

(quoting Haddad); Brown v. Sierra Nev. Mem’l Miners Hosp.,

849 F.2d 1186, 1190 (9th Cir. 1988) (quoting Kisor). And we

have recognized the contradiction but declined to address it

because the case before us was not so close that the presump-

tion would affect the outcome. See, e.g., Ortega, 50 F.3d at

780 n.2; Ackley v. W. Conference of Teamsters, 958 F.2d

1463, 1470 & n.4 (9th Cir. 1992); Pau, 928 F.2d at 888 & n.2.

Because this appeal presents precisely such a close case, we

find it necessary to resolve this conflict.

[12] We must follow Haddad. We believe that our contrary

language in Kisor inadvertently reversed the presumption of

prejudice observed in Haddad. See Pau, 928 F.2d at 888

(characterizing Kisor’s language as an “inadvertent misstate-

ment”). Cf. Coursen v. A.H. Robins Co., 764 F.2d at 1334,

1337, 1338, 1340, amended by, 773 F.2d 1049 (9th Cir. 1985)

(before Kisor, repeatedly citing Haddad but inconsistently

restating the Haddad standard — twice correctly, and twice

inadvertently reversing the presumption a la Kisor). Nothing

in Kisor suggested that intervening Supreme Court or en banc

decisions or new rules had rendered Haddad’s holding incor-

rect or amenable to reinterpretation, or that we intended to

actually reinterpret Haddad. Rather, Kisor’s citation of Had-

dad without any additional commentary indicates our intent to

remain faithful to Haddad. Cf. O’Neal v. McAninch, 513 U.S.

432, 438-39 (1995) (stating that language in a prior opinion

that suggested a reversal of the burden of proof for harmless

error was “not determinative” because the restatement was

2624 OBREY v. JOHNSON

inconsistent with the Court’s intention in that opinion to

merely apply precedent). Moreover, even if the Haddad stan-

dard were open to revisitation by a three-judge panel, address-

ing it in Kisor would have been inappropriate for the same

reason we declined to address the Haddad-Kisor conflict in

Ortega, Ackley, and Pau: The presumption was irrelevant

because it was not a “close case.” See Kisor, 783 F.2d at 1342

(finding that “the verdict was probably tainted” and reversing,

even while purporting to presume harmlessness). We there-

fore decline to recognize Kisor as affecting prior precedent as

to the precise formulation of the harmless error standard.

Apart from its precedential pedigree, we adopt Haddad’s

formulation of the harmless error standard for the additional

reason that we believe it to be correct on the merits. First,

Haddad is in keeping with “the original common-law

harmless-error rule [that] put the burden on the beneficiary of

the error either to prove that there was no injury or to suffer

a reversal of his erroneously obtained judgment.” Chapman v.

California, 386 U.S. 18, 24 (1967).

Second, we recognized in Haddad that “appellate courts

have three possible standards of review: harmless beyond a

reasonable doubt; high probability of harmlessness; and more

probably than not harmless.” 720 F.2d at 1458 n.7 (citing

ROGER TRAYNOR, THE RIDDLE OF HARMLESS ERROR (1972)); see

also Neder v. United States, 527 U.S. 1, 7 (1999) (noting that

in criminal cases constitutional errors affecting substantial

rights require automatic reversal, and all other constitutional

errors are disregarded only if harmless beyond a reasonable

doubt); United States v. Valle-Valdez, 554 F.2d 911, 915-16

(9th Cir. 1977) (recognizing the same three possible standards

and applying the more-probable-than-not standard to noncon-

stitutional errors in criminal cases). Each of these “possible”

formulations implies a presumption of prejudice; none pre-

sumes harmlessness.

[13] Third, presuming prejudice, rather than harmlessness,

is required by Supreme Court precedent. In O’Neal, the Court

OBREY v. JOHNSON 2625

rejected both the premise and conclusion of the argument that

a presumption of harmlessness applies in civil cases and that

therefore such a presumption should apply in habeas cases.

The Court held:

[P]recedent suggests that civil and criminal

harmless-error standards do not differ in their treat-

ment of grave doubts as to the harmlessness of errors

affecting substantial rights. . . . [E]ven if, for argu-

ment’s sake, we were to assume that the civil stan-

dard for judging harmlessness applies to habeas

proceedings (despite the fact that they review errors

in state criminal trials), it would make no difference

with respect to the matter before us. For relevant

authority rather clearly indicates that, either way, the

courts should treat similarly the matter of “grave

doubt” regarding the harmlessness of errors affecting

substantial rights, and as Kotteakos provides.

O’Neal, 513 U.S. at 441-42 (referring to Kotteakos v. United

States, 328 U.S. 750 (1946)). Kotteakos provides that “[if] the

error itself had substantial influence . . . or if one is left in

grave doubt [i.e., equipoise], the conviction cannot stand.”

328 U.S. at 764-65. Thus, the harmless error standard we

apply in civil cases must be consistent with the standard we

apply to nonconstitutional errors in criminal cases: “we must

reverse . . . unless it is more probable than not that the error

did not materially affect the verdict.” United States v. Mora-

les, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc). The party

benefitting from the error has the burden of persuasion, and

“in cases of ‘equipoise,’ we reverse.” United States v. Seschil-

lie, 310 F.3d 1208, 1214-15 (9th Cir. 2002). This standard is

substantively identical to the standard we applied in Haddad,

720 F.2d at 1549, and it is clear from O’Neal that we were

correct in adopting it for civil cases.

Thus, when reviewing the effect of erroneous evidentiary

rulings, we will begin with a presumption of prejudice. That

2626 OBREY v. JOHNSON

presumption can be rebutted by a showing that it is more

probable than not that the jury would have reached the same

verdict even if the evidence had been admitted. Haddad, 720

F.2d at 1459.

Applying this standard to the facts before us, the Navy

would have us hold that it is more probable than not that the

district court’s erroneous exclusion of evidence probative of

its alleged discriminatory bias and pretext did not taint the

jury’s verdict. Although recognizing the burden that an addi-

tional trial would place on the parties, we decline to do so.

As we noted in Haddad: “The danger of the harmless error

doctrine is that an appellate court may usurp the jury’s func-

tion, by merely deleting improper evidence from the record

and assessing the sufficiency of the evidence to support the

verdict below.” 720 F.2d at 1459 (citing Kotteakos, 328 U.S.

at 764-65; TRAYNOR, THE RiDDLE OF HARMLESS ERROR at 18-

22). While this danger has less practical importance where the

litigant merely has a right to a jury verdict that “more proba-

bly than not” corresponds to the truth, our task on appeal

remains meaningful: We must determine whether the eviden-

tiary error of which appellant complains has deprived him of

the degree of certainty to which he is entitled. Haddad, 720

F.2d at 1459.

[14] We cannot conclude, based upon the facts of this case,

that the erroneous exclusion of evidence directly probative of

the defendant’s discriminatory bias and pretext did not taint

the jury’s verdict. The evidence at issue was not merely tan-

gential or cumulative; rather, it was directly probative of the

central issues in dispute. Although the Dannemiller study is

in the record, neither Toyama nor the three Shipyard workers

actually testified; we know only what Obrey claimed they

would say. We are reluctant to judge a fact-intensive case on

the basis of mere proffers of evidence. We thus cannot state

that it is more probable than not that the jury was unaffected

by the erroneous exclusion of the plaintiff’s principal evi-

OBREY v. JOHNSON 2627

dence. Accordingly, we hold that the district court’s erroneous

exclusion of the Dannemiller study, the testimony of Mr.

Toyama, and the anecdotal testimony of three Shipyard work-

ers was an abuse of discretion requiring reversal. The errone-

ous exclusion was not harmless.

III.

For the foregoing reasons, the judgment of the district court

is REVERSED and the case is REMANDED for proceedings

consistent with this opinion.