Marie Conforto v. RICHARD V. SPENCER, Secretary, Department of the Navy; DEPARTMENT OF THE NAVY

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIE CONFORTO,
Plaintiff-Appellant,
v.
RICHARD V. SPENCER, Secretary,
Department of the Navy; DEPARTMENT
OF THE NAVY,
Defendants-Appellees.
No. 16-55808
D.C. No.
3:12-cv-01316-JAH-BLM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 12, 2018**
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,*** District
Judge.
FILED
FEB 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.

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Marie Conforto sued her employer, the Department of the Navy, for
discrimination and retaliation under Title VII, 42 U.S.C. § 2000e, and the Age
Discrimination in Employment Act, 29 U.S.C. § 621. At trial, a jury returned a
verdict for the Navy. Conforto raises only two issues on appeal: (1) whether
substantial evidence supports the jury’s finding that the denial of her request to
attend a training symposium was not an adverse employment action; and (2)
whether the district court abused its discretion in excluding the testimony of her
chiropractor, Dr. Rahmanian.
With respect to the first issue, Conforto failed to renew her motion for
judgment as a matter of law under Federal Rule of Civil Procedure 50(b). “[A]
post-verdict motion under Rule 50(b) is an absolute prerequisite to any appeal
based on insufficiency of the evidence.” Nitco Holding Corp. v. Boujikian, 491
F.3d 1086, 1089 (9th Cir. 2007) (citing Unitherm Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394 (2006)). Conforto has therefore waived any challenge to the
sufficiency of the evidence. See id. at 1089.1
1 Conforto argues there was no judgment below. Although the district court
did not enter judgment in a separate document as required by Federal Rule of Civil
Procedure 58, judgment was deemed entered 150 days after entry of the jury’s
verdict on the civil docket. Fed. R. Civ. P. 58(c)(2).
2

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We need not address the merits of Conforto’s second issue because she has
not identified any way in which the exclusion of Dr. Rahmanian’s testimony
prejudiced her, and indeed, it is clear the district court’s evidentiary ruling did not
impact the jury’s verdict. See U.S. Sec. & Exch. Comm’n v. Jensen, 835 F.3d
1100, 1116 (9th Cir. 2016) (“Evidentiary rulings are reviewed for abuse of
discretion, and reversed only if the decision below was both erroneous and
prejudicial.”).
AFFIRMED.
3

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