FILED
NOT FOR PUBLICATION
MAR 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORETTA H. CHEEKS, No. 15-15658
Plaintiff-Appellant, D.C. No. 2:12-cv-01543-JAT
v.
MEMORANDUM*
GENERAL DYNAMICS C4 SYSTEMS
INC.,
Defendant-Appellee,
and
GENERAL DYNAMICS
CORPORATION,
Defendant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted March 15, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: McKEOWN and BYBEE, Circuit Judges, and MOLLWAY,** District
Judge.
Loretta Cheeks appeals from the district court’s judgment issued against her
on her claim under the Family and Medical Leave Act (FMLA) and General
Dynamics C4 Systems, Inc.’s counterclaim for breach of contract. We affirm.
1. Cheeks argues that the district court erred by refusing to instruct the
jury that an employer, before terminating an employee on FMLA leave for subpar
performance, is required to adjust its performance expectations in accordance with
the employee’s FMLA leave. “We review jury instructions as a whole to
determine whether they are misleading or inadequate to guide the jury’s
deliberation,” United States v. Vallejo, 237 F.3d 1008, 1024 (9th Cir. 2001), “and
the refusal to give a requested instruction will not be overturned ‘if the charge as a
whole adequately covers the theory of the [plaintiff],’” United States v. Bradshaw,
690 F.2d 704, 710 (9th Cir. 1982) (quoting United States v. Kaplan, 554 F.2d 958,
968 (9th Cir. 1977)). The district court did not err in rejecting Cheeks’s proposed
instructions because the instructions that it gave adequately covered Cheeks’s
theory of the case. Indeed, nothing prevented Cheeks from arguing to the jury that
General Dynamics interfered with her FMLA rights by firing her for failing to
**
The Honorable Susan Oki Mollway, United States District Judge for
the District of Hawaii, sitting by designation.
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meet the performance standards of a full-time employee who did not take FMLA
leave. See Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003) (stating that
an employer interferes with an employee’s FMLA rights when it “use[s] [the
employee’s] FMLA leave as a factor in the decision to terminate her”).
2. Cheeks next challenges the district court’s exclusion of a document
General Dynamics prepared after Cheeks’s termination on the ground that the
document lacked foundation and was irrelevant to Cheeks’s claims. We review the
district court’s evidentiary rulings for an abuse of discretion, United States v.
Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016), and deem any error “harmless if it is
‘more probable than not that the erroneous [exclusion] of the evidence did not
affect the jury’s verdict,’” United States v. Ramirez-Robles, 386 F.3d 1234, 1244
(9th Cir. 2004) (quoting United States v. Vizcarra-Martinez, 66 F.3d 1006,
1016–17 (9th Cir. 1995)). Even assuming that the district court improperly
excluded Cheeks’s proffered evidence, the error was harmless because multiple
witnesses testified to the same facts as those set forth in the excluded document.
3. Finally, Cheeks contends that the district court erred in granting
summary judgment in favor of General Dynamics on its counterclaim because, in
Cheeks’s view, there was no evidence of any damages resulting from her breach of
the confidentiality agreement. See Watson Const. Co. v. Amfac Mortg. Corp., 124
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Ariz. 570, 581 (Ct. App. 1979) (listing actual damages as one element of a breach
of contract claim). In the confidentiality agreement, however, Cheeks agreed to
“reimburse and indemnify [General Dynamics] for the actual costs incurred by
[General Dynamics] in enforcing [the agreement], including but not limited to
attorneys’ fees” because any “failure to comply with [the agreement would]
irreparably harm the business of [General Dynamics].” The attorney’s fees
General Dynamics expended on enforcing the confidentiality agreement therefore
constitute actual damages that General Dynamics was entitled to recover. And the
district court did not err by calculating the damages itself because there was no
genuine dispute of material fact as to the amount of attorney’s fees due. See Fed.
R. Civ. P. 56(a).
AFFIRMED.
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