FILED
NOT FOR PUBLICATION MAR 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARTHA SLAUGHTER-PAYNE, No. 11-16815
Plaintiff - Appellant, D.C. No. 2:03-cv-02300-ROS
v.
MEMORANDUM *
ERIC K. SHINSEKI, Secretary of the
Department of Veterans Affairs,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted March 11, 2013
San Francisco, California
Before: WALLACE, McKEOWN, and IKUTA, Circuit Judges.
Martha Slaughter-Payne appeals from the district court’s judgment in favor
of Eric Shinseki, as Secretary of the Department of Veterans Affairs, after the jury
returned a verdict denying her employment discrimination claims. She challenges
various district court evidentiary rulings involving her employer, Veterans
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Administration Medical Center (VAMC). Slaughter-Payne alleged that VAMC
took adverse employment actions against her because of her prior involvement in
protected activities, in violation of 42 U.S.C. § 2000e-3(a). We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.
The district court’s order granting Shinseki’s motions in limine, prohibiting
Slaughter-Payne from introducing evidence of her pre-August 2001 protected
activities, may have been too restrictive. This court’s mandate in an earlier appeal,
which reversed the summary judgment on the retaliation claim, left room for the
introduction of certain background evidence. The excluded evidence was relevant
to Slaughter-Payne’s relationship with John Fears, VAMC’s director, and met the
low bar for relevancy under Federal Rule of Evidence 401. Despite the district
court’s initial in limine ruling, at trial the court permitted Slaughter-Payne’s
attorney to question Fears about a spectrum of Slaughter-Payne’s pre-August 2001
protected activities, thus revealing the essence of her relationship with Fears and
her prior activity. Even if the initial ruling was overly restrictive, the testimony at
trial sufficiently remedied Slaughter-Payne’s objection. Because “it is more
probable than not that the jury would have reached the same verdict even if
[further] evidence had been admitted,” the evidentiary ruling was not prejudicial.
Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005) (citation omitted).
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The district court’s rulings limiting testimony from Nathaniel Payne and
Mark Wright were not an abuse of discretion. The district court properly
determined that as a lay witness Payne could not testify to his opinion regarding
VAMC’s budget. Fed. R. Evid. 701 (“If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one that is . . . not based on
scientific, technical, or other specialized knowledge within the scope of Rule
702.”). Payne’s proffered testimony is not the type of opinion that results from “a
process of reasoning familiar in everyday life.” Fed. R. Evid. 701 Advisory
Committee Notes. The district court also permissibly limited Wright’s testimony
about VAMC’s budget because there was a legitimate question as to whether
Wright had knowledge about the relevant fiscal year. Jeff D. v. Otter, 643 F.3d
278, 283 (9th Cir. 2011) (“A district court abuses its discretion if it does not apply
the correct law or if it rests its decision on a clearly erroneous finding of material
fact.”) (internal citation and quotation marks omitted).
Finally, the district court permissibly excluded written statements and
limited the opinion testimony of Slaughter-Payne’s physician, Dr. Keller, who
identified workplace hostility as the cause of Slaughter-Payne’s medical
symptoms. Although treating physicians may “testify to and opine on what they
saw and did” without complying with the requirements for expert testimony,
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“when a treating physician morphs into a witness hired to render expert opinions
that go beyond the usual scope of a treating doctor’s testimony, the proponent of
the testimony must comply with Rule 26(a)(2).” Goodman v. Staples the Office
Superstore, LLC, 644 F.3d 817, 819–20 (9th Cir. 2011). Because Slaughter-Payne
first saw Dr. Keller over a year after the alleged retaliation took place, and after
Slaughter-Payne had initiated the underlying EEOC complaint, the district court
properly subjected Dr. Keller’s opinion about causation to the requirements for
expert testimony, and then properly excluded his opinion on that basis.
Despite the exclusion, at trial Shinseki nevertheless used a portion of one of
Dr. Keller’s written statements regarding causation to impeach Slaughter-Payne.
The district court appropriately allowed Slaughter-Payne’s counsel to read the
remainder of that statement to the jury. Fed. R. Evid. 106 (“If a party introduces
all or part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part—or any other writing or recorded
statement—that in fairness ought to be considered at the same time.”). The district
court’s remedy was not in error.
AFFIRMED.
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