Kimberly Melody Mitchell v. Postmaster General, United States Postal Service

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY MELODY MITCHELL,
Plaintiff - Appellant,
v.
POSTMASTER GENERAL, UNITED
STATES POSTAL SERVICE,
Defendant - Appellee.
No. 13-36124
D.C. No. 3:10-cv-00141-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted November 18, 2014
Portland, Oregon
Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.
Kimberly Melody Mitchell appeals the district court’s judgment in favor of
the Postmaster General, United States Postal Service. We affirm.
FILED
DEC 01 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 2 --

Because Plaintiff did not timely challenge the district court’s instructions,
we review for plain error. See Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1230
(9th Cir. 2011) (citing Fed. R. Civ. P. 51(d)(2)). The court’s error in stating the
causation standard in Plaintiff’s Title VII retaliation claim as “sole” instead of
“but-for” cause is not reversible because it was more probably than not harmless.
See Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013). Plaintiff’s
counsel argued that a sole cause—discrimination, not Plaintiff’s
absences—resulted in her termination. The jury also found for Defendant on
Plaintiff’s related Rehabilitation Act retaliation claim, which was nearly identical
except that it required a lower “motivating factor” causation standard.
Because Plaintiff did not make an offer of proof, we also review her
evidentiary challenge for plain error. See Fed. R. Evid. 103(e); United States v.
Hayat, 710 F.3d 875, 894 (9th Cir. 2013). The district court’s relevance-based
exclusion of testimony by Plaintiff’s supervisor was not plainly erroneous. These
complaints were mere allegations of wrongdoing. Plaintiff was not precluded from
asking the witness about actual episodes of discrimination or about adjudications
or findings of discrimination.
AFFIRMED.
2

-- 2 of 2 --