United States v. 2005-03-03 | 03-16849 | OBREY VJOHNSON | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RONALD L. OBREY, JR.,
Plaintiff-Appellant, No. 03-16849
v. D.C. No.
CV-02-00033-  HANSFORD T. JOHNSON, in his MLR/LEKcapacity as the Acting Secretary of
the Navy, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Hawaii
Manuel L. Real, District Judge, Presiding
Argued and Submitted
November 3, 2004—Honolulu, Hawaii
Filed March 4, 2005
Before: Melvin Brunetti, Susan P. Graber, and Jay S. Bybee,
Circuit Judges.
Opinion by Judge Bybee
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COUNSEL
Clayton C. Ikei, Honolulu, Hawaii, for the plaintiff-appellant.
E. Roy Hawkens, Jeffrey Clair, Appellate Staff Civil Divi-
sion, Department of Justice, Washington, D.C., for the
defendant-appellee.
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OPINION
BYBEE, Circuit Judge:
This appeal requires us to clarify and apply the harmless
error test applicable to civil trials in our circuit.
I.
Appellant, Ronald L. Obrey, Jr., originally filed suit for
declaratory and injunctive relief, alleging that he was twice
denied a promotion to the position of Production Resource
Manager at the Pearl Harbor Naval Shipyard (hereinafter, the
“Shipyard”) on the basis of his race in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. (2000). Obrey alleged that the defendant, the
Secretary of the Navy, had engaged in a pattern or practice of
discriminating against qualified candidates of Asian-Pacific
ancestry in favor of Caucasian applicants for senior manage-
ment positions at the Shipyard. In a pre-trial hearing, the dis-
trict court issued several evidentiary rulings excluding the
principal evidence supporting Obrey’s pattern or practice
claim. After a jury trial, judgment was entered against Obrey.
The district court’s evidentiary rulings form the basis for this
appeal.
The Pearl Harbor Shipyard is one of four Navy shipyards
operated by the Navy organizational unit, the Naval Sea Sys-
tems Command. Obrey, an Asian-Pacific Islander, has, from
1995-2002, worked as a Project Superintendent at the Ship-
yard. In 2002, Obrey applied for the Production Resource
Manager’s (“PRM”) position at the Shipyard, a position
which carried a promotion from his current grade level of
GM-14 to a GS-15 grade. Nine other individuals also applied.
Pursuant to Navy guidelines, the applicants were rated in
three categories, including relevant knowledge, ability to plan
and manage resources, and ability to perform supervisory
management functions. On the basis of this rating, Obrey was
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ranked sixth out of ten applicants during the first round of hir-
ing, and fifth out of the eight competitive applicants in the
second round. The PRM position was subsequently offered to
Ernest Chamberlain in the first round of hiring, and then
David Reilly in the second, both of whom are Caucasian
males and both of whom declined the offer. Recruitment was
then cancelled.
In this appeal, Obrey claims that the district court abused
its discretion in failing to admit three pieces of evidence: (1)
a statistical report showing a correlation between race and
promotion at the Shipyard; (2) the testimony of a Shipyard
employee who recalled conversations in which Shipyard offi-
cials expressed discriminatory bias toward the local Asian-
Pacific Islanders; and (3) the anecdotal testimony of three
Shipyard employees who also believed they had suffered race
discrimination at the Shipyard. The Navy argues that the
exclusion was proper but that, even if the district court erred,
the error was harmless. Addressing each evidentiary ruling in
turn, we find that the district court’s decision excluding this
evidence was an abuse of discretion as to all. We further con-
clude that the error was not harmless.
A.
The district court denied Obrey’s motion in limine to admit
statistical evidence regarding hiring practices for senior-level
positions at the Shipyard. The hiring practice evidence at
issue was compiled through discovery and included the hiring
history of the Pearl Harbor Shipyard for the period 1999-
2002. Obrey retained James Dannemiller, a statistician with
SMS Research & Marketing Services, Inc., to analyze this
data and provide a statistical report and opinion. Dannemil-
ler’s report concludes that “[t]here is no statistical evidence
. . . that the selection process for GS13 through GS15 posi-
tions between 1999 and 2002 were unbiased with respect to
race.”
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The government challenged the admission of Dannemiller’s
report on the ground that it was so incomplete that it was
inadmissible as irrelevant, unfairly prejudicial, and unreliable.
See FED. R. EVID. 402, 403, 702. In the government’s view,
the statistical analysis was inadmissible because it failed to
account for the relative qualifications of the applicants being
studied. The district court denied Obrey’s motion to admit
Dannemiller’s statistical evidence. Although the court did not
specify its reasons, presumably its ruling was based on the
perceived irrelevance and unreliability of the statistics. While
we review evidentiary rulings for an abuse of discretion,
Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th
Cir.), amended by, 773 F.2d 1049 (9th Cir. 1985), neither of
these reasons warrants exclusion in this case.
Obrey’s claim was premised on the theory that the Navy
had engaged in a pattern or practice of discriminatory hiring
practices. Employment discrimination claims styled in this
manner are governed by “controlling legal principles that are
relatively clear.” Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 335 (1977). Obrey’s theory of discrimination was
that the Navy regularly and purposefully treated the local
Asian-Pacific Islanders less favorably than white persons by
refusing to promote minority group members on an equal
basis. His suit thus raised as factual issues “whether there was
a pattern or practice of such disparate treatment and, if so,
whether the differences were ‘racially premised.’ ” Id. at 335
(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792,
805 n.18 (1973)).
As the plaintiff, Obrey bore the initial burden of making
out a prima facie case of discrimination. Cooper v. Fed.
Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). And,
because he alleged a systemwide pattern or practice of resis-
tance to the full enjoyment of Title VII rights, Obrey ulti-
mately had to prove “more than the mere occurrence of
isolated or ‘accidental’ or sporadic discriminatory acts.”
Teamsters, 431 U.S. at 336. He had to establish, by a prepon-
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derance of the evidence, that racial discrimination was the
Navy’s “standard operating procedure—the regular rather
than the unusual practice.” Id. By “demonstrating the exis-
tence of a discriminatory pattern or practice,” Obrey would
“establish[ ] a presumption that [he] had been discriminated
against on account of race.” Cooper, 467 U.S. at 875 (citing
Franks v. Bowman Transp. Co., 424 U.S. 747, 772 (1976)).
[1] In a case in which the plaintiff has alleged that his
employer has engaged in a “pattern or practice” of discrimina-
tion, “[s]tatistical data is relevant because it can be used to
establish a general discriminatory pattern in an employer’s
hiring or promotion practices. Such a discriminatory pattern
is probative of motive and can therefore create an inference
of discriminatory intent with respect to the individual employ-
ment decision at issue.” Diaz v. Am. Tel. & Tel., 752 F.2d
1356, 1363 (9th Cir. 1985);1 see also McDonnell Douglas,
411 U.S. at 805 n.19 (“The District Court may, for example,
determine, after reasonable discovery that the (racial) compo-
sition of defendant’s labor force is itself reflective of restric-
tive or exclusionary practices.”) (internal quotation marks
omitted); Coral Constr. Co. v. King County, 941 F.2d 910,
918 (9th Cir. 1991) (“[F]or purposes of Title VII, ‘[w]here
gross statistical disparities can be shown, they alone may in
a proper case constitute prima facie proof of a pattern or prac-
tice of discrimination.’ ”) (quoting Hazelwood Sch. Dist. v.
United States, 433 U.S. 299, 307-08 (1977)); Diaz, 752 F.2d
at 1363 (“In some cases, statistical evidence alone may be
sufficient to establish a prima facie case. . . . Even when not
sufficient to establish a prima facie case, statistical evidence
is helpful in showing that an employer’s articulated reason for
the employment decision is pretextual . . . .” (citations omitted)).2
1The Navy argues that Obrey abandoned his pattern or practice claim
at trial. If Obrey did so, it was because the trial court excluded his evi-
dence. Any abandonment was compelled and was not a waiver of the
claim.
2The Supreme Court has suggested on several occasions that a statistical
comparison is a valuable tool with which to evaluate a claim of employ-
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Obrey’s statistical evidence was not rendered irrelevant
under Rule 402 simply because it failed to account for the rel-
ative qualifications of the applicant pool. See FED. R. EVID.
402 (“All relevant evidence is admissible, except as otherwise
provided [by law]. Evidence which is not relevant is not
admissible.”) A statistical study may fall short of proving the
plaintiff’s case, but still remain relevant to the issues in dis-
pute. The Dannemiller study may be relevant, and therefore
admissible, even if it is not sufficient to establish Obrey’s
prima facie case or a claim of pretext. Thus, objections to a
study’s completeness generally go to “the weight, not the
admissibility of the statistical evidence,” Mangold v. Cal.
Pub. Utils. Comm’n, 67 F.3d 1470, 1476 (9th Cir. 1995), and
should be addressed by rebuttal, not exclusion, Teamsters,
431 U.S. at 340. As the Court has pointed out,
Statistics showing racial or ethnic imbalance are pro-
bative . . . because such imbalance is often a telltale
sign of purposeful discrimination; . . . . Consider-
ations such as small sample size may, of course,
detract from the value of such evidence, and evi-
dence showing that the figures for the general popu-
lation might not accurately reflect the pool of
qualified job applicants would also be relevant.
Teamsters, 431 U.S. at 339-40 n.20 (citations omitted); see
also Bazemore v. Friday, 478 U.S. 385, 400 (1986) (per
curiam) (“Normally, failure to include variables will affect the
analysis’ probativeness, not its admissibility.”) (Brennan, J.,
concurring in part); Hemmings v. Tidyman’s Inc., 285 F.3d
1174, 1188-89 (9th Cir. 2002) (“[T]he law does not require
ment discrimination. See, e.g., Furnco Constr. Corp. v. Waters, 438 U.S.
567, 580 (1978) (district court entitled to consider the racial mix of the
workforce); Teamsters, 431 U.S. at 339 (“[O]ur cases make it unmistak-
ably clear that statistical analyses have served and will continue to serve
an important role in cases in which the existence of discrimination is a dis-
puted issue.”) (internal quotation marks omitted).
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the near-impossible standard of eliminating all possible non-
discriminatory factors. . . . We cannot say that the exclusion
of preferences, individual qualifications, and education ren-
dered the data set so incomplete ‘as to be irrelevant.’ ”) (quot-
ing Bazemore, 478 U.S. at 400) (emphasis in original); cert.
denied, 537 U.S. 1110 (2003); Maitland v. Univ. of Minn.,
155 F.3d 1013, 1017 (8th Cir. 1998) (“[A] regression analysis
does not become inadmissible as evidence simply because it
does not include every variable that is quantifiable and may
be relevant to the question presented. . . . [I]t is for the finder
of fact to consider the variables that have been left out of an
analysis, and the reasons given for the omissions, and then to
determine the weight to accord the study’s results . . . .”); Wil-
mington v. J.I. Case Co., 793 F.2d 909, 920 (8th Cir. 1986)
(“Virtually all the inadequacies in the expert’s testimony
urged here by [the defendant] were brought out forcefully at
trial . . . . These matters go to the weight of the expert’s testi-
mony rather than to its admissibility.”).
In some cases, statistical evidence may suffer from serious
methodological flaws and can be excluded, consistent with
the trial court’s “gatekeeping” power, under Rule 702. See
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156-57 (1999);
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90
(1993).3 Factors which may bear on admissibility include: (1)
whether the “scientific knowledge . . . can be (and has been)
tested”; (2) whether “the theory or technique has been sub-
3Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon suf-
ficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the prin-
ciples and methods reliably to the facts of the case.
FED. R. EVID. 702.
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jected to peer review and publication”; (3) “the known or
potential rate of error”; and (4) “general acceptance.”
Daubert, 509 U.S. at 593-94. The Rule 702 inquiry is a “flexi-
ble one” whose “overarching subject is the scientific validity
and thus the evidentiary relevance and reliability [ ] of the
principles that underlie a proposed submission.” Id. at 594-95;
see also Kumho Tire, 526 U.S. at 141 (“[T]he test of reliabil-
ity is ‘flexible,’ and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all experts or in every
case.”).
[2] Here, the Dannemiller study is based entirely on statisti-
cal disparities. While we, and other courts, have commented
on the inadequacy of such studies, we have typically done so
in the context of finding insufficient evidence to support a
prima facie case of discrimination, and not to rule those
studies inadmissible for purposes of Rule 702. See, e.g., Cole-
man v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000)
(“Because [the statistics] fail to account for many factors per-
tinent to [the plaintiff], we conclude that the statistics are not
enough to take this case to trial.”); Ottaviani v. State Univ. of
N.Y. at New Paltz, 875 F.2d 365, 370-75 (2d Cir. 1989) (sta-
tistical evidence was not “statistically significant” enough to
establish a prima facie case of discrimination); Gay v. Wait-
ers’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531,
553 (9th Cir. 1982) (“[S]tatistical evidence, standing alone,
was insufficient to establish a prima facie case.”). As a gen-
eral matter, so long as the evidence is relevant and the meth-
ods employed are sound, neither the usefulness nor the
strength of statistical proof determines admissibility under
Rule 702. See Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832,
843 (9th Cir. 2001) (“Rather than disqualify the study because
of ‘incompleteness’ . . . , the district court should examine the
soundness of the methodology employed.”).
[3] In sum, Dannemiller’s study was relevant for what it
purported to analyze: the race of managers selected at the
Shipyard compared to the race of those who applied for mana-
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gerial positions. While, by itself, this cannot constitute proof
that the Navy discriminated against Obrey, see Cooper, 467
U.S. at 876, it should have been admitted for whatever proba-
tive value it had. Since the defendant’s objections to the
admission of Dannemiller’s study went to weight and suffi-
ciency rather than admissibility, we conclude that the district
court abused its discretion when it excluded this evidence.
B.
The district court also excluded the testimony of a single
Shipyard worker, Mr. Toyama, on the grounds that his evi-
dence was irrelevant. FED. R. EVID. 401 (“ ‘Relevant evi-
dence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence.”). Toyama was expected to testify
that Shipyard officials had informed him that off-yard
employees were rotated to Pearl Harbor on a temporary basis
because the “local” workers “were not good enough” and
“can’t do a good job.”
[4] Toyama’s testimony was plainly relevant to the issue of
whether the defendant preferred off-yard, predominantly Cau-
casian, workers over the “local” Asian-Pacific Islanders. We
have observed that “evidence that the defendant has made dis-
paraging remarks about the class of persons to which plaintiff
belongs[ ] may be introduced to show that the defendant har-
bors prejudice toward that group.” Lam v. Univ. of Haw., 164
F.3d 1186, 1188 (9th Cir. 1999) (internal quotation marks
omitted). It tends to show “a defendant’s discriminatory state
of mind.” Id.4
4The Navy argues that these comments were not directed at the “locals”
—meaning the Asian-Pacific Islanders—but were critical of the general
efforts of all Navy employees at the Shipyard. The inferences to be drawn
from these comments should be resolved by a jury.
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[5] Toyama’s testimony was also relevant to whether the
Navy’s proffered race-neutral reasons for preferring off-yard
workers was a pretext for unlawful race discrimination. Obrey
asserts that Toyama also would have challenged the Navy’s
claim that off-yard managers were more capable of perform-
ing their tasks within the Shipyard’s budget by demonstrating
that the imported managers were funded by budgeted funds
separate and apart from the Shipyard’s budget. According to
Obrey, this testimony would have cast doubt on the Navy’s
explanation by demonstrating that the off-yard managers
exerted no effect whatsoever on the Shipyard’s budget.
[6] Because Toyama’s testimony tended to make the exis-
tence of discriminatory bias and pretext more probable than
it would be without his testimony, we find that the district
court abused its discretion by excluding this evidence.
C.
The district court also excluded the testimony of three
Shipyard workers, Kawachi, Pestana and Tai See, who were
prepared to testify that the Shipyard discriminated against
them on the basis of race when it failed to select them for
supervisory positions. The court found that the testimony at
issue would require the jury to assess the discrimination
claims of each of the three proposed witnesses by, essentially,
conducting three abbreviated employment discrimination tri-
als. The court concluded that the testimony should be
excluded on the basis of Federal Rule of Evidence 403, pre-
sumably because considerations of undue delay and waste of
time outweighed its probative value. See FED. R. EVID. 403
(“Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”).
[7] Like statistical evidence, anecdotal evidence of past dis-
crimination can be used to establish a general discriminatory
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pattern in an employer’s hiring or promotion practices. While
such evidence might prove inadmissible in the typical case of
individual discrimination, in a case involving a claim of dis-
criminatory pattern or practice “the combination of convinc-
ing anecdotal and statistical evidence is potent.” Coral
Constr. Co., 941 F.2d at 919. It is commonplace that a plain-
tiff attempting to establish a pattern or practice of discrimina-
tory employment will present some anecdotal testimony
regarding past discriminatory acts. See, e.g., Rossini v. Ogilvy
& Mather, Inc., 798 F.2d 590, 604 (2d Cir. 1986) (“In evalu-
ating all of the evidence in a discrimination case, a district
court may properly consider the quality of any anecdotal evi-
dence or the absence of such evidence.”); Coates v. Johnson
& Johnson, 756 F.2d 524, 532 (7th Cir. 1985) (“The plain-
tiffs’ prima facie case will thus usually consist of statistical
evidence demonstrating substantial disparities in the applica-
tion of employment actions as to minorities and the unpro-
tected group, buttressed by evidence of . . . specific instances
of discrimination.”); Valentino v. United States Postal Serv.,
674 F.2d 56, 69 (D.C. Cir. 1982) (“[W]hen the statistical evi-
dence does not adequately account for the diverse and special-
ized qualifications necessary for (the positions in question),
strong evidence of individual instances of discrimination
becomes vital to the plaintiff’s case.”) (internal quotation
marks omitted); Garcia v. Rush-Presbyterian-St. Luke’s Med.
Ctr., 660 F.2d 1217, 1225 (7th Cir. 1981) (“We find very
damaging to plaintiffs’ position the fact that not only was
their statistical evidence insufficient, but that they failed com-
pletely to come forward with any direct or anecdotal evidence
of discriminatory employment practices by defendants. Plain-
tiffs did not present in evidence even one specific instance of
discrimination.”).
[8] We recognize, however, that the district court retains
broad discretion to determine whether the probative value of
the evidence at issue is substantially outweighed by consider-
ations of “undue delay, waste of time, or needless presenta-
tion of cumulative evidence.” FED. R. EVID. 403; see also R.B.
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Matthews, Inc. v. Transamerica Transp. Servs., Inc., 945 F.2d
269, 272 (9th Cir. 1991) (“Trial judges have wide discretion
to exclude evidence given their presence at the trial and
because the considerations arising under Rule 403 are ‘sus-
ceptible only to case-by-case determinations, requiring exami-
nation of the surrounding facts, circumstances, and issues.’ ”)
(quoting United States v. Layton, 767 F.2d 549, 554 (9th Cir.
1985)). Nevertheless, none of the testimony that the appellant
attempted to offer into evidence so clearly involved delay that
was “undue” or a “waste of time” or was cumulative of other
evidence that it was excludable. Rather, the testimony was
offered to show that the defendant had a discriminatory
motive when it denied his promotion because it had unlaw-
fully rejected other applicants in circumstances similar to his,
and tended to support his pattern or practice theory. While the
jury naturally has to determine the credibility of witness testi-
mony in order to assess the weight it should be accorded, this
is not the sort of undue delay and waste of time that the Rules
contemplate.
[9] We acknowledge that the trial court was properly con-
cerned with the prospect of mini-trials on the witnesses’ own
claims of discrimination. The trial court should have first
addressed these concerns with the parties through other, less
restrictive means. On balance, we believe that this proposed
testimony was likely to be relevant, and Rule 403 consider-
ations do not warrant exclusion in this case. Consequently, we
find that the district court abused its discretion when it
excluded this testimony. On remand, the district court, of
course, will retain discretion to decide that the witnesses’
claims so overwhelm the issues in the trial that their testimony
must be excluded under Rule 403.
II.
[10] Turning to the question of harmless error, we note, ini-
tially, that judicial error alone does not mandate reversal.
Rather, in order to reverse, we must find that the error
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affected the substantial rights of the appellant. See FED. R.
EVID. 103(a) (“Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right
of the party is affected . . . .”); FED. R. CIV. P. 61 (“The court
at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial
rights of the parties.”). In other words, we require a finding
of prejudice. See Kisor v. Johns-Manville Corp., 783 F.2d
1337, 1340 (9th Cir. 1986). Although frequently termed a
“harmless error” analysis, this inquiry turns on the distinction
between the burden of proof required in civil and criminal tri-
als: “Just as the verdict in a civil case need only be more
probably than not true, so an error in a civil trial need only be
more probably than not harmless.” Haddad v. Lockheed Cal.
Corp., 720 F.2d 1454, 1459 (9th Cir. 1983).
[11] In a somewhat contradictory fashion, however, we
have formulated two variations of the test for prejudice in
civil cases. In Haddad, we held that the reviewing court must
find prejudice unless it concludes that the verdict is “more
probably than not untainted by the error.” Id. Purporting to
restate the standard set forth in Haddad, we later wrote in
Kisor, that “[t]o reverse, we must say that more probably than
not, the error tainted the verdict.” Kisor, 783 F.2d at 1340
(citing Haddad, 720 F.2d at 1459). As we noted in Pau v.
Yosemite Park & Curry Co., 928 F.2d 880, 888 & n.2 (9th
Cir. 1991), and Ortega v. O’Connor, 50 F.3d 778, 780 n.2
(9th Cir. 1995), this restatement effected more than a mere
semantic change. Rather, “in a close case, where the review-
ing court is uncertain of the effect of an evidentiary error on
the jury’s verdict, these two standards create contradictory
presumptions.” Id. Under Haddad’s formulation, we presume
prejudice; under Kisor, we appear to presume the opposite.
Pau, 928 F.2d at 888 n.2.
Making matters worse, we have inconsistently applied
Haddad and Kisor. We have cited both without recognizing
the contradiction. See, e.g., Baker v. Delta Air Lines, Inc., 6
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F.3d 632, 639 (9th Cir. 1993) (quoting Kisor and noting its
reliance on Haddad); Cassino v. Reichhold Chems., Inc., 817
F.2d 1338, 1345 (9th Cir. 1987). We have applied one or the
other without recognizing or purporting to resolve the contra-
diction. See, e.g., Blind-Doan v. Sanders, 291 F.3d 1079,
1082 (9th Cir. 2002) (restating the standard a la Kisor and cit-
ing Pau); Tennison v. Circus Circus Enters., 244 F.3d 684,
688 (9th Cir. 2001) (same); Beachy v. Boise Cascade Corp.,
191 F.3d 1010, 1015-16 (9th Cir. 1999) (quoting Haddad);
Oliver v. United States, 921 F.2d 916, 920 (9th Cir. 1990)
(quoting Haddad); Brown v. Sierra Nev. Mem’l Miners Hosp.,
849 F.2d 1186, 1190 (9th Cir. 1988) (quoting Kisor). And we
have recognized the contradiction but declined to address it
because the case before us was not so close that the presump-
tion would affect the outcome. See, e.g., Ortega, 50 F.3d at
780 n.2; Ackley v. W. Conference of Teamsters, 958 F.2d
1463, 1470 & n.4 (9th Cir. 1992); Pau, 928 F.2d at 888 & n.2.
Because this appeal presents precisely such a close case, we
find it necessary to resolve this conflict.
[12] We must follow Haddad. We believe that our contrary
language in Kisor inadvertently reversed the presumption of
prejudice observed in Haddad. See Pau, 928 F.2d at 888
(characterizing Kisor’s language as an “inadvertent misstate-
ment”). Cf. Coursen v. A.H. Robins Co., 764 F.2d at 1334,
1337, 1338, 1340, amended by, 773 F.2d 1049 (9th Cir. 1985)
(before Kisor, repeatedly citing Haddad but inconsistently
restating the Haddad standard — twice correctly, and twice
inadvertently reversing the presumption a la Kisor). Nothing
in Kisor suggested that intervening Supreme Court or en banc
decisions or new rules had rendered Haddad’s holding incor-
rect or amenable to reinterpretation, or that we intended to
actually reinterpret Haddad. Rather, Kisor’s citation of Had-
dad without any additional commentary indicates our intent to
remain faithful to Haddad. Cf. O’Neal v. McAninch, 513 U.S.
432, 438-39 (1995) (stating that language in a prior opinion
that suggested a reversal of the burden of proof for harmless
error was “not determinative” because the restatement was
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inconsistent with the Court’s intention in that opinion to
merely apply precedent). Moreover, even if the Haddad stan-
dard were open to revisitation by a three-judge panel, address-
ing it in Kisor would have been inappropriate for the same
reason we declined to address the Haddad-Kisor conflict in
Ortega, Ackley, and Pau: The presumption was irrelevant
because it was not a “close case.” See Kisor, 783 F.2d at 1342
(finding that “the verdict was probably tainted” and reversing,
even while purporting to presume harmlessness). We there-
fore decline to recognize Kisor as affecting prior precedent as
to the precise formulation of the harmless error standard.
Apart from its precedential pedigree, we adopt Haddad’s
formulation of the harmless error standard for the additional
reason that we believe it to be correct on the merits. First,
Haddad is in keeping with “the original common-law
harmless-error rule [that] put the burden on the beneficiary of
the error either to prove that there was no injury or to suffer
a reversal of his erroneously obtained judgment.” Chapman v.
California, 386 U.S. 18, 24 (1967).
Second, we recognized in Haddad that “appellate courts
have three possible standards of review: harmless beyond a
reasonable doubt; high probability of harmlessness; and more
probably than not harmless.” 720 F.2d at 1458 n.7 (citing
ROGER TRAYNOR, THE RIDDLE OF HARMLESS ERROR (1972)); see
also Neder v. United States, 527 U.S. 1, 7 (1999) (noting that
in criminal cases constitutional errors affecting substantial
rights require automatic reversal, and all other constitutional
errors are disregarded only if harmless beyond a reasonable
doubt); United States v. Valle-Valdez, 554 F.2d 911, 915-16
(9th Cir. 1977) (recognizing the same three possible standards
and applying the more-probable-than-not standard to noncon-
stitutional errors in criminal cases). Each of these “possible”
formulations implies a presumption of prejudice; none pre-
sumes harmlessness.
[13] Third, presuming prejudice, rather than harmlessness,
is required by Supreme Court precedent. In O’Neal, the Court
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rejected both the premise and conclusion of the argument that
a presumption of harmlessness applies in civil cases and that
therefore such a presumption should apply in habeas cases.
The Court held:
[P]recedent suggests that civil and criminal
harmless-error standards do not differ in their treat-
ment of grave doubts as to the harmlessness of errors
affecting substantial rights. . . . [E]ven if, for argu-
ment’s sake, we were to assume that the civil stan-
dard for judging harmlessness applies to habeas
proceedings (despite the fact that they review errors
in state criminal trials), it would make no difference
with respect to the matter before us. For relevant
authority rather clearly indicates that, either way, the
courts should treat similarly the matter of “grave
doubt” regarding the harmlessness of errors affecting
substantial rights, and as Kotteakos provides.
O’Neal, 513 U.S. at 441-42 (referring to Kotteakos v. United
States, 328 U.S. 750 (1946)). Kotteakos provides that “[if] the
error itself had substantial influence . . . or if one is left in
grave doubt [i.e., equipoise], the conviction cannot stand.”
328 U.S. at 764-65. Thus, the harmless error standard we
apply in civil cases must be consistent with the standard we
apply to nonconstitutional errors in criminal cases: “we must
reverse . . . unless it is more probable than not that the error
did not materially affect the verdict.” United States v. Mora-
les, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc). The party
benefitting from the error has the burden of persuasion, and
“in cases of ‘equipoise,’ we reverse.” United States v. Seschil-
lie, 310 F.3d 1208, 1214-15 (9th Cir. 2002). This standard is
substantively identical to the standard we applied in Haddad,
720 F.2d at 1549, and it is clear from O’Neal that we were
correct in adopting it for civil cases.
Thus, when reviewing the effect of erroneous evidentiary
rulings, we will begin with a presumption of prejudice. That
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presumption can be rebutted by a showing that it is more
probable than not that the jury would have reached the same
verdict even if the evidence had been admitted. Haddad, 720
F.2d at 1459.
Applying this standard to the facts before us, the Navy
would have us hold that it is more probable than not that the
district court’s erroneous exclusion of evidence probative of
its alleged discriminatory bias and pretext did not taint the
jury’s verdict. Although recognizing the burden that an addi-
tional trial would place on the parties, we decline to do so.
As we noted in Haddad: “The danger of the harmless error
doctrine is that an appellate court may usurp the jury’s func-
tion, by merely deleting improper evidence from the record
and assessing the sufficiency of the evidence to support the
verdict below.” 720 F.2d at 1459 (citing Kotteakos, 328 U.S.
at 764-65; TRAYNOR, THE RiDDLE OF HARMLESS ERROR at 18-
22). While this danger has less practical importance where the
litigant merely has a right to a jury verdict that “more proba-
bly than not” corresponds to the truth, our task on appeal
remains meaningful: We must determine whether the eviden-
tiary error of which appellant complains has deprived him of
the degree of certainty to which he is entitled. Haddad, 720
F.2d at 1459.
[14] We cannot conclude, based upon the facts of this case,
that the erroneous exclusion of evidence directly probative of
the defendant’s discriminatory bias and pretext did not taint
the jury’s verdict. The evidence at issue was not merely tan-
gential or cumulative; rather, it was directly probative of the
central issues in dispute. Although the Dannemiller study is
in the record, neither Toyama nor the three Shipyard workers
actually testified; we know only what Obrey claimed they
would say. We are reluctant to judge a fact-intensive case on
the basis of mere proffers of evidence. We thus cannot state
that it is more probable than not that the jury was unaffected
by the erroneous exclusion of the plaintiff’s principal evi-
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dence. Accordingly, we hold that the district court’s erroneous
exclusion of the Dannemiller study, the testimony of Mr.
Toyama, and the anecdotal testimony of three Shipyard work-
ers was an abuse of discretion requiring reversal. The errone-
ous exclusion was not harmless.
III.
For the foregoing reasons, the judgment of the district court
is REVERSED and the case is REMANDED for proceedings
consistent with this opinion.
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