Brian Zahn v. Francis Harvey

FILED
NOT FOR PUBLICATION MAR 31 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

BRIAN ZAHN, No. 09-35043

Plaintiff - Appellant, D.C. No. 2:03-cv-00356-EFS

v.
MEMORANDUM **
JOHN McHUGH,* Secretary of the Army,

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding

***
Submitted March 16, 2010

Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

*
John McHugh is substituted for his predecessor, Francis J. Harvey, as
Secretary of the Army, pursuant to Fed. R.App. P. 43(c)(2).

**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

***
The panel unanimously concludes this case is suitable for decision
without oral argument. Accordingly Davenport’s request for oral argument is
denied.

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09-35043
 Brian Zahn appeals pro se from the district court’s judgment for defendant

following a bench trial in his action alleging retaliation in violation of Title VII, the

Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”) and the

Washington Law Against Discrimination (“WLAD”). We have jurisdiction under

28 U.S.C. § 1291. We review for clear error the district court’s factual findings as

to retaliatory intent, Jauregui v. City of Glendale, 852 F.2d 1128, 1131 (9th Cir.

1988), and for abuse of discretion its evidentiary rulings, Janes v. Wal-Mart Stores,

Inc., 279 F.3d 883, 886 (9th Cir. 2002). We affirm.

The district court did not clearly err by finding that Zahn failed to prove that

the instruction that he not return to work was motivated by any protected status

under Title VII, the ADA, the RA or the WLAD. See Lam v. Univ. of Haw., 40

F.3d 1551, 1565-66 (9th Cir. 1994) (holding that the district court’s finding of no

discrimination under Title VII was not clearly erroneous because the finding was

supported by the record); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080,

1093 (9th Cir. 2001) (holding Title VII analysis applies in ADA case); Coons v.

Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (recognizing

standards to determine discrimination are the same under the RA and the ADA);

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Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003) (recognizing

the same analysis applies under the WLAD and Title VII).

The district court did not abuse its discretion by denying the admission at

trial of affidavits Zahn contends supported his case. See Fed. R. Evid. 801(c) and

804(a); cf. Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 713 (9th Cir. 1992)

(explaining that, to be admissible under Fed. R. Evid. 804, affidavits require more

than an oath alone to guarantee the trustworthiness of the affiant). The district

court also did not abuse its discretion by admitting letters from Zahn’s physician

and psychologist. See Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1034 (9th

Cir. 2008) (explaining that the exclusionary rule “is an exceptional remedy

typically reserved for violations of constitutional rights” in criminal cases)

(citations and internal quotation marks omitted); cf. Haddad v. Lockheed Cal.

Corp., 720 F.2d 1454, 1456 (9th Cir. 1983) (holding evidence properly admitted as

non-hearsay during trial in a Title VII action to show non-discriminatory intent).

We decline to consider Zahn’s contentions concerning the district court’s

denial of his motion to amend his complaint to conform to the evidence at trial

concerning a possible cause of action for constructive discharge. Zahn has

provided no citations to the record permitting any determination as to whether or

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not such an amendment was warranted. See Syncom Capital Corp. v. Wade, 924

F.2d 167, 169 (9th Cir. 1991) (dismissing appeal of pro se appellant who did not

ensure that the court had a complete trial transcript to enable review of his

contentions).

Zahn’s remaining contentions are unpersuasive.

AFFIRMED.

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