FILED
NOT FOR PUBLICATION APR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AL ACII, No. 13-55517
Plaintiff – Appellant, D.C. No. 2:11-cv-01751-JAK-AJW
v.
MEMORANDUM *
AUTOZONE, INC.; AUTOZONE WEST,
INC.,
Defendants – Appellees.
AL ACII, No. 13-55543
Plaintiff – Appellee, D.C. No. 2:11-cv-01751-JAK-AJW
v.
AUTOZONE, INC.; AUTOZONE WEST,
INC.,
Defendants – Appellants.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
*
This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be provided by Ninth Circuit Rule
36-3.
Submitted March 5, 2015 **
Pasadena, California
Before: MURPHY, *** GOULD, and TALLMAN, Circuit Judges.
Al Acii brought suit against AutoZone, Inc., and AutoZone West, Inc.
(collectively “AutoZone”), his former employer, under the provisions of
California’s Fair Employment and Housing Act (“FEHA”). Cal. Gov’t Code
§ 12920, et seq. Acii asserted AutoZone terminated his employment because of
his age. Id. § 12940(a) (making it an unlawful employment practice “[f]or an
employer, because of the . . . age . . . of any person, to . . . discharge the person
from employment”). Relying on the California Supreme Court’s decision in
Harris v. City of Santa Monica, 294 P.3d 49, 66 (Cal. 2013), the district court
instructed the jury that to prevail on his age-discrimination claims, Acii had to
prove age was a substantial motivating reason for his discharge. The jury entered
a unanimous verdict in favor of AutoZone.
Acii contends that the district court erred (1) in instructing the jury that to
rule for him it must conclude age was a “substantial motivating reason,” rather
than simply a “motivating reason,” for the discharge; and (2) in failing to sua
sponte reopen the case and allow him to present more evidence after concluding
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
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that, to prevail, he must demonstrate age discrimination was a substantial
motivating reason for his discharge. AutoZone cross-appeals, asserting the
district court erred when it denied its Fed. R. Civ. P. 50 and 56 motions.
Prior to trial, Acii proposed jury instructions that in part would tell the jury
that to prevail on his age discrimination claim, Acii had to demonstrate his age
was the “motivating reason” for AutoZone’s decision to terminate his
employment. Cf. Cal. Gov’t Code § 12940(a) (prohibiting the termination of an
employee “because of,” inter alia, that employee’s age). AutoZone objected to
Acii’s proposed instructions, when proposed and at the pretrial conference,
asserting the proper standard was but-for causation. AutoZone noted the proper
standard of causation under FEHA was pending before the California Supreme
Court in Harris.
After trial began and before it concluded, the California Supreme Court
decided Harris. Harris, a pregnancy discrimination case tried to the jury under a
mixed-motive paradigm, held that the causation element in § 12940(a)’s “because
of” language required a plaintiff to demonstrate “an illegitimate criterion was a
substantial factor in the particular employment decision.” 294 P.3d at 66
(quotation omitted). The district court adopted final jury instructions that
incorporated the “substantial motivating reason” standard of causation of Harris.
Acii asserts Harris only applies to cases tried under a mixed-motive rubric,
not to cases tried under a disparate-treatment rubric. But California’s
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intermediate appeals courts have applied Harris to all wrongful termination
claims (both statutory and tort, single and mixed motive). See, e.g., Mendoza v.
W. Med. Ctr. Santa Ana, 166 Cal. Rptr. 3d 720, 725–26 (Cal. Ct. App. 2014);
Alamo v. Practice Mgmt. Info. Corp., 161 Cal. Rptr. 3d 758, 761, 767 (Cal. Ct.
App. 2013). And the Judicial Council of California has altered each of the
relevant pattern jury instructions to conform to the notion that Harris’s
interpretation of the causation element in § 12940(a) applies to all suits, not just
suits involving a potential mixed motive. See CACI 2430 (“Wrongful Discharge
in Violation of Public Policy—Essential Factual Elements”); CACI 2500
(“Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))”);
CACI 2507 (“‘Substantial Motivating Reason’ Explained”).
Acii asserts the district court erred when it failed to sua sponte reopen the
case and allow him to present additional evidence to satisfy Harris’s heightened
burden of causation. Because Acii did not raise this claim of error in the district
court, he can only obtain relief on appeal by demonstrating the district court
committed plain error. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th
Cir. 2002). Acii does not recognize the applicable standard of review, let alone
argue an entitlement to relief under the rigorous plain-error standard.
Acii’s argument is based on a misinterpretation of the record. Acii
suggests the district court first adopted a set of jury instructions that set out a
causation standard of “motivating reason.” He further asserts the district court
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changed course during trial when it adopted jury instructions consistent with the
causation standard set out in Harris. According to Acii, he was surprised and
prejudiced by this end-of-trial change. But Acii does not cites any portion of the
record in support of his assertion that the district court, at some point pretrial,
adopted jury instructions consistent with pre-Harris law. In fact, as noted above,
the record reveals (1) AutoZone objected to Acii’s proposed instructions well
before trial and (2) the proper standard of causation was still contested, and
unresolved, at the final pretrial conference. At no point prior to the district
court’s adoption of final jury instructions on February 11th, did the district court
resolve the causation issue in a way that could lead Acii to reasonably conclude
the jury would be instructed to resolve the issue of causation by reference to the
“motivating reason” standard. Likewise, given that AutoZone’s written
objections indicated California law was in flux, Acii cannot assert he reasonably
relied on pre-Harris law in assuming the jury would be instructed under the
“motivating reason” standard. The district court did not err, let alone plainly err,
when it failed to sua sponte reopen the case for the presentation of additional
evidence after adopting final jury instructions.
The judgment of the district court is affirmed, AutoZone’s cross-appeal is
dismissed as moot, and the parties’ requests for sanctions on the opposing party
are denied.
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