no error when “the judge gave jury instructions that properly covered the law”
How later courts described this case
- no error when “the judge gave jury instructions that properly covered the law”
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION
AUG 26 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK J. SCHWARTZ, No. 18-15930
Plaintiff-Appellant, D.C. No.
2:13-cv-00709-JCM-VCF
v.
CLARK COUNTY, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 7, 2019**
Anchorage, Alaska
Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.
Mark Schwartz appeals from the grant of summary judgment and the jury
verdict in favor of defendants on his claims of age and disability discrimination
under federal and state law. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291.
The district court did not err in concluding that Schwartz’s supervisor,
Jacqueline Holloway, was entitled to qualified immunity on Schwartz’s § 1983
claim, because Schwartz failed to carry his burden of showing that it is clearly
established that a county official violates an employee’s constitutional rights by
manipulating job titles to affect the seniority of an employee for purpose of layoff
decisions that are alleged to discriminate on the basis of age or disability. See
Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018) (per curiam). While our prior
order, Schwartz v. Clark Cty., 650 F. App’x 542, 543–44 (9th Cir. 2016), held that
Schwartz had raised a genuine issue of material fact as to whether there was a
constitutional violation, it did not address whether any alleged constitutional
violation was clearly established, and so does not affect our conclusion here.
We reject Schwartz’s argument that the district court’s statements before the
jury deprived him of a fair trial. Reviewing “the trial record as a whole,” Kennedy
v. L.A. Police Dep’t, 901 F.2d 702, 709 (9th Cir. 1990) abrogated on other
grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam), the district court’s
comments related to the quality and relevance of counsel’s evidence rather than to
counsel’s good faith or integrity, and so do not warrant a retrial, see, e.g., Pau v.
2
Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir. 1991); Shad v. Dean
Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir. 1986).
The district court did not abuse its discretion when it refused to instruct the
jury that a witness had previously lied under oath because, among other reasons, it
otherwise covered witness credibility in its impeachment instruction. See Jones v.
Williams, 297 F.3d 930, 937 (9th Cir. 2002) (no error when “the judge gave jury
instructions that properly covered the law”). Nor did the district court abuse its
discretion when it denied Schwartz’s request to instruct the jury that pretext could
be shown by direct or indirect evidence because it generally instructed the jury that
it “should consider both direct and circumstantial evidence.” Finally, the district
court did not err when it denied Schwartz’s request to give a mixed-motive jury
instruction and instead instructed the jury that it must determine whether Schwartz
was laid off “because of” his age or disability. The instruction tracked the
language of the statute, see N.R.S. § 613.330(1)(a), (b), which prohibits
discrimination “because of” an individual’s age or disability, and Schwartz failed
to point to Nevada case law that would support a mixed-motive instruction in this
context. Moreover, the Nevada Supreme Court has held that mixed-motive
instructions generally go against Nevada’s strong public policy of at-will
employment. See Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998).
3
While Nevada courts may look to analogous federal law for guidance with
discrimination claims under § 613.330, see, e.g., Liston v. Las Vegas Metro Police
Dep’t, 908 P.2d 720, 721 n.2 (Nev. 1995), we have held that a mixed-motive
instruction is not proper for federal disability discrimination claims, see Murray v.
Mayo Clinic, No. 17-16803, slip op. at 10–11 (9th Cir. Aug. 20, 2019).
AFFIRMED.
4