Galdamez v. Potter

• Decision Date: 15 July 2005
• Docket Number: No. 03-35682.,03-35682.
• Citation: 415 F.3d 1015
• Parties: Arlene GALDAMEZ, Plaintiff-Appellant, v. John POTTER, Postmaster General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

415 F.3d 1015

Arlene GALDAMEZ, Plaintiff-Appellant, v. John POTTER, Postmaster General, Defendant-Appellee.

No. 03-35682.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2005.

Filed July 15, 2005.

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Thomas F. Spaulding, Spaulding Cox & Schaeffer, LLP, Portland, Oregon, for the appellant.

Ronald K. Silver, Assistant United States Attorney, Portland, Oregon, for the appellee.

Appeal from the United States District Court for the District of Oregon; John Jelderks, Magistrate Judge, Presiding. D.C. No. CV-00-01768-JJ.

Before HUG, BERZON, and BYBEE, Circuit Judges.

HUG, Circuit Judge.

Arlene Galdamez appeals the district court's denial of her motion for a new trial following a defense verdict in her Title VII case against the United States Postal Service. We treat Galdamez's timely appeal from denial of the new trial motion as an appeal from final judgment. See 11 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 2818, at 191-93 (1995); accord Medrano v. City of Los Angeles, 973 F.2d 1499, 1502-03 (9th Cir.1992); In re Nicholson, 779 F.2d 514, 515-16 (9th Cir.1985). Therefore, we have jurisdiction under 28 U.S.C. § 1291. Although the district court correctly denied Galdamez's motion to amend the pretrial order and did not abuse its discretion in formulating either the jury instructions or the special verdict, it nonetheless erred by denying her request for an instruction on the Postal Service's potential liability for harassment by customers and community members based on her race and national origin. Accordingly, we affirm in part, reverse in part, and remand for a new trial on Galdamez's harassment claim.

I Factual and Procedural Background

Arlene Galdamez was born in Honduras and speaks English with a discernible accent. She began working for the Postal Service in 1983. In late 1993, she took over as postmaster in Willamina, Oregon. Galdamez immediately began to make a number of changes designed to bring the Willamina office into line with Postal Service regulations. For example, she insisted on timely payment of post office box fees, prohibited non-employees from entering non-public areas, and insisted on returning incorrectly addressed mail even when carriers knew how to deliver it. These changes were met by hostility and opposition from both customers and other postal workers. Customers complained to Jim Bogroff, her immediate supervisor, as well as William Jackson, the District Manager for Oregon. Local media also devoted considerable coverage to the controversy.

Galdamez, however, perceived a good deal of this hostility as stemming from her race, national origin, and accented English. Throughout her time in Willamina, she endured offensive verbal comments from customers and community members, references in local newspapers to her accent and foreign birth, direct and indirect threats to her safety, and vandalism to her car. According to Galdamez, her reports of harassment and requests for assistance were rebuffed by Bogroff and other Service managers.

Community opposition culminated in a petition drive and a "town hall" meeting, held on March 26, 1997, aimed at removing Galdamez from her position. The petition and meeting were organized by Ron "Chris" Greenhill, a postal customer whose mail was delayed at the post office for some time because the Greenhills did not have a proper mail receptacle at their rural address. Despite requests from Galdamez, neither Bogroff nor Jackson attended the community meeting to defend her, and Jackson made a number of comments critical of her performance in interviews with local and regional newspapers.¹

At around the same time, the Postal Service initiated a disciplinary investigation of Galdamez based on complaints that she was "rude" and that her insistence on regulatory compliance undermined good customer service. On March 21, 1997, Bogroff held an investigative interview with Galdamez and her representative, Bob Bernal.² During that meeting, Galdamez insisted that a great deal of the community criticism was motivated by her foreign birth and accent rather than her performance as postmaster. Several days later, Bogroff notified Galdamez that she was being placed on administrative leave effective April 1, 1997, and prohibited her from entering non-public areas of the post office. Bogroff then proposed formal discipline by way of a "Letter of Warning in Lieu of Time-Off Suspension," which Jackson later approved.

Galdamez filed this action in district court alleging race, color, and/or national origin discrimination in violation of Title VII. The parties consented to trial before a magistrate judge,³ who entered a stipulated pretrial order setting forth the pertinent claims and issues of fact for trial. Following the close of evidence, Galdamez made an oral motion to amend the pretrial order to include a retaliation claim, which the district court denied. The district court also refused to give a requested jury instruction on the Postal Service's potential liability for failing to investigate and remedy harassment at the hands of customers and community members.

During deliberations, the jury sent a note to the judge seeking clarification of the special verdict form. In response, the district court gave the jury a modified special verdict form and additional instructions requiring the jury to decide whether discrimination occurred, and if so, to specify which of Galdamez's three primary supervisors—Bogroff, Jackson, and John Fusco, who substituted for Bogroff during part of 1996—had intentionally discriminated against her. The jury returned a verdict for the Postal Service, finding that Galdamez had not "established by a preponderance of the evidence that her national origin was a motivating factor in any adverse employment action on the part of her supervisors that affected the terms and conditions of her employment." Finding no discrimination, the jury did not reach the specific questions as to each supervisor's role. The jurors also submitted a handwritten note with their verdict stating their unanimous conviction that the Postal Service had subjected Galdamez to some "adverse employment action." The district court denied Galdamez's motion for a new trial, and this timely appeal followed.

II Standard of Review

We review the district court's denial of Galdamez's new trial motion for abuse of discretion. Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 883 (9th Cir.2003). Standards for reviewing the district court's particular decisions are discussed more fully in each section below.

III Analysis

A. Motion to Amend the Pretrial Order

Following the close of evidence, Galdamez moved to amend the pretrial order to include a retaliation claim. According to Galdamez, evidence emerged at trial that the Postal Service had subjected her to various retaliatory actions after Ron Gates, Galdamez's second official representative in disciplinary proceedings, told Bogroff that an EEO investigation might result from the attempt to discipline Galdamez. The district court, noting that the disciplinary process started well before Gates made the comment, and thus could not have been instituted in retaliation for it, denied the motion for lack of evidence to support the claim.

Galdamez had the burden of showing that an amendment to the pretrial order was necessary to prevent "manifest injustice." See Fed.R.Civ.P. 16(e); Byrd v. Guess, 137 F.3d 1126, 1132 (9th Cir.1998). In evaluating a motion to amend the pretrial order, a district court should consider four factors: (1) the degree of prejudice or surprise to the defendants if the order is modified; (2) the ability of the defendants to cure the prejudice; (3) any impact of modification on the orderly and efficient conduct of the trial; and (4) any willfulness or bad faith by the party seeking modification. Id. We review the district court's denial of the motion for abuse of discretion. Id. at 1131.

Even if the evidence was sufficient to support a retaliation claim, the district court did not abuse its discretion in denying the motion. Galdamez had all of the essential evidence she identified in support of the claim well before entry of the pretrial order. However, she did not file her motion until after the close of evidence, and thereby deprived the Postal Service of any opportunity to present additional evidence or examine witnesses on this issue. Had the district court granted the motion, the Postal Service would have been able to respond to the retaliation claim only in closing argument. The Postal Service thus may have been prejudiced by the modification and would not have been able to cure that prejudice effectively. See Byrd, 137 F.3d at 1131-32.

We conclude that Galdamez has not shown the requisite manifest injustice.

B. Mixed Motive Instruction

Galdamez contends that the district court failed to give a mixed motive instruction despite sufficient evidence.⁴ The district court's formulation of jury instructions is reviewed for abuse of discretion, as is the sufficiency of the evidence to support a mixed motive instruction. See Costa v. Desert Palace, Inc., 299 F.3d 838, 858 (9th Cir.2002) (en banc), aff'd, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Whether an instruction misstates the law, however, is a legal issue reviewed de novo. Id.

The evidence in the record was sufficient to support a mixed motive instruction. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1072 (9th Cir.2004) (as amended); Costa, 299 F.3d at 858-59. The instruction given was a mixed motive instruction: It asked the jury whether Galdamez's national origin was "a motivating factor," not the motivating factor, in the Postal Service's decision. See 42 U.S.C. § 2000e-2(m) (emphasis added). The district court declined to instruct the jury on the affirmative defense that the Postal Service would have taken the same...