DAN DIXON and HEIDI DIXON v. City of Coeur D’alene

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAN DIXON and HEIDI DIXON,
Plaintiffs - Appellees,
v.
CITY OF COEUR D’ALENE,
Defendant - Appellant.
No. 11-35978
D.C. No. 2:10-cv-00078-LMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Larry M. Boyle, Magistrate Judge, Presiding
Argued and Submitted October 1, 2013
University of Idaho Law School
Before: SCHROEDER, THOMAS, and N.R. SMITH, Circuit Judges.
The City of Coeur d’Alene (“the City”) appeals the district court’s exclusion
of polygraph evidence at trial and the denial of the City’s renewed motion for
judgment as a matter law following a jury verdict in favor of Dan and Heidi Dixon.
Because the parties are familiar with the history of this case, we need not recount it
here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
OCT 24 2013
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.

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I
Under our deferential standard of review, we conclude that the district court
did not abuse its discretion by excluding any mention that Dixon took—or would
refuse to take—polygraph examinations. As we have previously stated,
introduction of unstipulated polygraph evidence presents a “special risk that the
jury might give excessive weight to the polygrapher’s conclusions,” especially if
the case turns on the relative credibility of the parties. United States v. Ramirez-
Robles, 386 F.3d 1234, 1245–47 (9th Cir. 2004) (internal quotation marks and
citation omitted). Even the introduction of the mere fact of testing, without
disclosure of results, presents the real possibility that the jury could reasonably
likely infer what the results are. United States v. Bowen, 857 F.2d 1337, 1341 (9th
Cir. 1988).
In this case, the district court conducted the appropriate analysis and
balancing and concluded that the evidence should be excluded. We decline to
second guess the trial judge’s decision.
II
“We review de novo the district court’s denial of a renewed motion for
judgment as a matter of law.” MHC Fin. Ltd. P’ship v. City of San Rafael, 714
F.3d 1118, 1131 (9th Cir. 2013) (internal quotation marks and citation omitted). In
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reviewing the verdict, “[w]e ask whether the evidence, construed in the light most
favorable to the nonmoving party[,] permits only one reasonable conclusion, and
that conclusion is contrary to the jury’s verdict.” Acosta v. City of Costa Mesa,
718 F.3d 800, 828 (9th Cir. 2013). In other words, the “jury’s verdict must be
upheld if it is supported by substantial evidence, which is evidence adequate to
support the jury’s conclusion, even if it is also possible to draw a contrary
conclusion.” Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008)
(internal quotation marks and citation omitted). We must “disregard all evidence
favorable to the moving party that the jury is not required to believe.” Id.
A
The City argues that the district court erred in allowing the jury to consider
Dixon’s claim that the City violated his substantive due process rights and was
liable under the “single-incident” failure-to-train theory. In the alternative, the
City argues that there was insufficient evidence to support the jury’s verdict as to
this claim. However, it is unnecessary for us to decide those federal questions,
because the jury returned a general damage verdict, which can be sustained by the
alternative legally viable state law claims upon which the damage verdict also
rests. Webb v. Sloan, 330 F.3d 1158, 1166 (9th Cir. 2003).
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There were two legally sustainable state law theories of liability,
constructive discharge and negligent infliction of emotional distress, and a general
damage verdict, awarding economic and non-economic damages, as to all theories
of liability (both state and federal claims). In determining whether alternative
theories can sustain the general damage verdict, we consider:
(1) the potential for confusion of the jury; (2) whether the losing
party's defenses apply to the count upon which the verdict is being
sustained; (3) the strength of the evidence supporting the count relied
upon to sustain the verdict; and (4) the extent to which the same
disputed issues of fact apply to the various legal theories.
Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 62 F.3d 280,
285-86 (9th Cir. 1995) (internal quotation marks and citation omitted).
In examining this record, we conclude that the evidence presented was
common to all liability theories, the evidence was sufficiently strong to support the
state law theories, the defenses raised by the City were sufficiently common to
sustain the verdict, and the evidence pertaining to the federal theories did not
present such a potential for jury confusion that the general damage verdict could
not be sustained under the state law claims.
Examination of the extensive special jury verdict form bolsters this
conclusion. The jury was specifically questioned on all counts and reached a
unanimous verdict concluding that Dixon was (1) constructively discharged by the
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City, (2) terminated without good cause, (3) terminated for reasons that were
arbitrary and lacking a rational basis, and (4) permanently foreclosed from
pursuing any occupation in law enforcement because of the City’s actions.
The jury also concluded that the City negligently caused Dixon and his wife
emotional distress and awarded economic and non-economic damages. Thus, there
were alternative legally viable theories on which the damage verdict could rest and,
therefore, there was sufficient evidence to sustain the judgment. Accordingly, we
need not reach the merits of the federal claim.
B
The City does not challenge the jury verdict as to negligent infliction of
emotional distress. It does dispute the sufficiency of the evidence as to the
constructive discharge claim in its renewed motion for judgment as a matter of law.
However, it was undisputed that the City demoted Dixon two ranks, reduced his
pay thirty percent, and branded him as dishonest. An expert witness testified that,
based on his experience as a police officer, it would have been “[t]otally
unreasonable” for Dixon to return to work after being “branded a liar, cheater,
harasser, stealer and thief.” Another expert, a forensic psychologist, testified that
Dixon reasonably felt humiliated and disgraced by the internal investigation, and
that Dixon’s demotion after seventeen years in the police department was “not
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simply a separation of a job,” but “a separation of an individual from their very
identity.” And even without the expert testimony, the jury could rationally
conclude that Dixon’s new working conditions were “so intolerable that a
reasonable person in [his] position would have felt compelled to resign[.]”
Waterman v. Nationwide Mut. Ins. Co., 201 P.3d 640, 645 (Idaho 2009) (citing
Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007)).
The City argues that Dixon cannot claim intolerable working conditions
because he never showed up to work after his demotion. But this argument ignores
the objective nature of the inquiry—the question is not whether Dixon personally
felt that the conditions were intolerable, but rather whether “a reasonable person in
[Dixon’s] position would have felt compelled to resign.” Id.
III
In summary, the district court did not abuse its discretion in declining to
admit polygraph evidence. Construing the evidence in the light most favorable to
the plaintiff, there was sufficient evidence to sustain the verdict with respect to the
constructive discharge claim, and the state did not challenge the negligent infliction
of emotional distress claim. Given this conclusion, we need not–and do not–reach
any other issue urged by the parties.
AFFIRMED.
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