Haddad v. Lockheed California Corp.

• Decision Date: 28 November 1983
• Docket Number: No. 81-5041,81-5041
• Citation: 720 F.2d 1454
• Parties: 33 Fair Empl.Prac.Cas. 553, 32 Empl. Prac. Dec. P 33,943, 14 Fed. R. Evid. Serv. 661 Robert HADDAD, Plaintiff-Appellant, v. LOCKHEED CALIFORNIA CORPORATION, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1454

720 F.2d 1454

33 Fair Empl.Prac.Cas. 553,

32 Empl. Prac. Dec. P 33,943,

14 Fed. R. Evid. Serv. 661

Robert HADDAD, Plaintiff-Appellant, v. LOCKHEED CALIFORNIA CORPORATION, a corporation, Defendant-Appellee.

No. 81-5041.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1983.

Decided Nov. 28, 1983.

Robert J. Frank, Woodlands Hills, Cal., for plaintiff-appellant.

Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and NELSON, Circuit Judges, and HARDY, ^* District Judge.

NELSON, Circuit Judge:

Appellant Robert Haddad appeals from the district court's judgment on his national origin discrimination claim, 42 U.S.C. Secs. 2000e et seq. (1976 & Supp. V 1981), and from the jury's verdict on his age discrimination in employment claim, 29 U.S.C. Secs. 621 et seq. (1976 & Supp. V 1981). Both claims arise from the same allegedly improper acts by appellee Lockheed. Despite the admission of improper evidence at trial,

we affirm both the court's judgment and the jury's verdict.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Robert Haddad worked for appellee Lockheed California Corporation from early 1969 until his resignation in July 1979. Appellant claims that while in Lockheed's employ he was subject to a variety of forms of disparate treatment. This treatment, appellant alleged below, was the product of discrimination on the basis of national origin and age.

After filing a timely charge with the Equal Employment Opportunity Commission and receiving statutory notice of final action from the Commission, appellant initiated the present lawsuit in the Central District of California. Pursuant to 42 U.S.C. Sec. 2000e-5(f)(4) (1976), appellant's claim of discrimination based on national origin was tried by the district court judge. Appellant's age discrimination claim was submitted to a jury. Both claims were decided in favor of appellee Lockheed. Appellant brought this timely appeal.

DISCUSSION

Appellant bases his appeal on purported errors in the district court's jury instructions and evidentiary rulings. Two of appellant's claims on appeal merit only brief discussion. Appellant's third claim, involving the admission of testimony in violation of appellant's marital privilege, merits fuller consideration as it calls into question the proper standard for determining harmless error in a civil trial.

I

Haddad argues that the district court improperly instructed the jury that in order to find for Haddad it had to find that Lockheed intended to discriminate. However, Haddad argued the case on a disparate treatment rather than on a disparate impact theory, and the evidence he submitted could only have supported the former claim. The district court's instruction was proper. See Heagney v. University of Washington, 642 F.2d 1157, 1163 (9th Cir.1981).

Haddad also argues that the district court improperly admitted hearsay testimony by Lockheed management regarding third parties' complaints about working with Haddad. However, this testimony was not hearsay: it was not offered to prove the truth of the complaints. See Fed.R.Evid. 801(c). Instead, this testimony was offered to show that Lockheed management had received complaints regarding Haddad. Such testimony was relevant in demonstrating Lockheed's non-discriminatory intent in its employment practices. See Fed.R.Evid. 803(3). The court's admission of the evidence was not an abuse of its discretion. See United States v. Patterson, 678 F.2d 774, 778 (9th Cir.) cert. denied, --- U.S. ----, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982).

Haddad next attacks the admission of certain testimony of his ex-wife, claiming that such evidence was protected by the confidential marital communication privilege. The privilege properly protects the marital communication about which the witness testified. See United States v. Lustig, 555 F.2d 737, 747 (9th Cir.1977). Lockheed failed to overcome the presumption in favor of applying the privilege. See In re Grand Jury Investigation of Hipes, 603 F.2d 786, 788 (9th Cir.1979). Therefore, the district court should have excluded this testimony.

Since this evidence is cumulative of other evidence in the record and the record contains no evidence to the contrary, we presume that the improper admission of this testimony had no effect on the court's decision rejecting Haddad's national origin discrimination claim. See Plummer v. Western International Hotels Co., 656 F.2d 502, 505 (9th Cir.1981). Thus, we affirm the court's decision on this claim. ¹

The improper admission of Haddad's ex-wife's testimony poses a more serious problem for the jury verdict on Haddad's age discrimination claim. A jury, unlike a judge, cannot be presumed to have based its verdict only on properly admitted evidence. See generally E. Cleary, McCormick on Evidence Sec. 60, at 137 (2d ed. 1972); 7 J. Moore, J.D. Lucas, Moore's Federal Practice p 61.07[2-3] (2d ed. 1982). Our task, then, is to determine whether the evidentiary error committed below affected a "substantial right" of appellant and so requires reversal of the age discrimination verdict. 28 U.S.C. Sec. 2111 (1976); Fed.R.Evid. 103(a); Fed.R.Civ.P. 61.

II

As an initial inquiry, we must determine what standard to use to determine whether the error in this case was sufficient to require reversal. Some errors involve "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); see, e.g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (no counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased judge). A second type of constitutional error does not involve the fundamental integrity of the judicial process but does implicate the constitutional rights of the criminally accused. These errors must be shown by an appellate court to be harmless beyond a reasonable doubt. See, e.g., Chapman v. California, 386 U.S. at 24-25, 87 S.Ct. at 828-829 (1967) (drawing inferences in violation of the right against self-incrimination); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (admitting testimony in violation of the confrontation clause).

It would be possible to end our inquiry here merely by distinguishing the error in the case at bar from the constitutional errors discussed in Chapman. This court first stressed the importance of such a distinction in dicta, United States v. Valle-Valdez, 554 F.2d 911, 915-19 (9th Cir.1977), and suggested that the harmlessness of trial error might be gauged under two standards: harmless beyond a reasonable doubt for constitutional errors and more probably than not harmless for non-constitutional errors. Id. The Valle-Valdez opinion, however, noted that ruling Ninth Circuit authority could be interpreted to require non-constitutional errors in criminal cases to be measured by the more rigorous "harmless beyond a reasonable doubt" standard. Id. at 916 (citing United States v. Rea, 532 F.2d 147 (9th Cir.1976); United States v. Duhart, 496 F.2d 941 (9th Cir.), cert. denied, 419 U.S. 967, 95 S.Ct. 230, 42 L.Ed.2d 182 (1974)). Subsequent cases have relied upon the Valle-Valdez distinction between constitutional and non-constitutional errors as dispositive, and measured non-constitutional errors in criminal cases using a standard requiring reversal unless the error was more probably than not harmless. See, e.g., United States v. Berry, 627 F.2d 193, 201 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); United States v. Dixon, 562 F.2d 1138, 1143 (9th Cir.1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978). ²

Despite its convenience, we will not rely on the reasoning in Valle-Valdez to resolve the open question of what standard of harmlessness should prevail in a civil appeal. ³ Neither the distinction between constitutional and non-constitutional error nor the strictly bifurcated standard of harmlessness it creates has been uniformly accepted. ⁴ Courts frequently avoid relying on the distinction by finding harmlessness under all standards. ⁵ Commentators have cautioned against making the standard for harmless error turn entirely on a distinction between constitutional and non-constitutional error. ⁶ Finally, we are not certain that application of the more lenient standard to errors involving the improper admission of evidence in a criminal trial can be reconciled with the Supreme Court's language in Chapman: "An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy [v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) ], be conceived of as harmless." 386 U.S. at 23-24, 87 S.Ct. at 827-828. Because of our concern that courts' adoption of this bifurcated standard of harmlessness may have occurred through misinterpretation of Chapman and Valle-Valdez, we decline to perpetuate the mistake by extending the analysis to civil cases. We therefore put this distinction to one side, and address directly the question before us: How probable must the harm from an error in a civil trial be before it affects substantial rights and thus requires reversal? ⁷

The purpose of a harmless error standard is to enable an appellate court to gauge the probability that the trier of fact was affected by the error. See R. Traynor, supra, at 29-30. Perhaps the most important factor to consider in fashioning such a standard is the nature of the particular fact-finding process to which the standard is to be applied. Accordingly, a crucial first step in determining how we should gauge the probability that an error was harmless is recognizing the...