NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODERICK MARSHALL, No. 19-55788
Plaintiff-Appellee, D.C. No.
2:16-cv-08630-DMG-MRW
v.
THE BOEING COMPANY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted July 10, 2020**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and GORDON,*** District Judge.
The Boeing Company appeals a jury verdict in favor of Roderick Marshall
on claims of California Fair Employment and Housing Act (FEHA) hostile work
*
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).
***
The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.
environment harassment, FEHA failure to prevent harassment, and negligent
supervision or retention. Boeing’s appeal challenges the trial judge’s denial of its
post-trial motion for judgment as a matter of law or a new trial. We review the
denial of a renewed motion for judgment as a matter of law de novo and uphold the
jury verdict if it is supported by substantial evidence. Dunlap v. Liberty Nat.
Prods., Inc., 878 F.3d 794, 797 (9th Cir. 2017). We review a motion for a new
trial for abuse of discretion and reverse “‘only if the record contains no evidence in
support of the verdict’ or if the district court ‘made a mistake of law.’” E.E.O.C. v.
Go Daddy Software, Inc., 581 F.3d 951, 962 (9th Cir. 2009) (quoting Molski v.
M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)). We have jurisdiction under
28 U.S.C. § 1291 and affirm.
1. To prove his claim for FEHA hostile work environment harassment,
Marshall had to show that Boeing “knew or should have known of the
harassment.” Roby v. McKesson Corp., 219 P.3d 749, 762 (Cal. 2009), as modified
(Feb. 10, 2010). There is substantial evidence in the record that Boeing’s
supervisors knew or should have known of the racial harassment. Thus, the district
court did not err in denying Boeing’s motion for judgment as a matter of law or
abuse its discretion in denying Boeing’s request for a new trial.
2. To prove his claim for FEHA failure to prevent harassment, Marshall
had to show that Boeing “fail[ed] to take all reasonable steps necessary to prevent
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. . . harassment from occurring.” Cal. Gov’t Code § 12940(k). There is substantial
evidence in the record that Boeing’s supervisors were aware of ongoing
harassment but failed to report it or otherwise intervene. Thus, the district court
did not err in denying Boeing’s motion for judgment as a matter of law or abuse its
discretion in denying Boeing’s request for a new trial.
3. To prove his claim for negligent supervision or retention, the jury
instructions required Marshall to show that Boeing knew its employees engaged in
racist conduct and that the racist conduct created a particular risk of harassment to
African-American employees. There is substantial evidence in the record that
Boeing’s supervisors knew of the racist conduct and knew that the conduct created
a particular risk of harassment. Thus, the district court did not err in denying
Boeing’s motion for judgment as a matter of law or abuse its discretion in denying
Boeing’s request for a new trial.
AFFIRMED.
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