                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 09 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GREGORY NEAL GRIMES,                             No. 08-16823

             Plaintiff - Appellant,              D.C. No. 5:05-cv-01824-RS

  v.
                                                 MEMORANDUM *
UNITED PARCEL SERVICE,

             Defendant - Appellee.



GREGORY NEAL GRIMES,                             No. 08-17525

             Plaintiff - Appellee,               D.C. No. 5:05-cv-01824-RS

  v.

UNITED PARCEL SERVICE,

             Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                       Richard Seeborg, Magistrate Judge

                      Argued and Submitted January 13, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.

      Gregory Grimes (“Grimes”) brought suit against United Parcel Service

(“UPS”) in state court, alleging, inter alia, disability discrimination and related

claims under California’s Fair Employment & Housing Act (“FEHA”). UPS

removed the action to federal court on the basis of diversity jurisdiction.

Following partial summary judgment, trial, and partial settlement, the district court

entered final judgment in favor of UPS. Grimes now appeals the district court’s

grant of summary judgment to UPS on his rehire claim. Grimes also appeals

several of the magistrate judge’s evidentiary rulings at trial. UPS appeals the

district court’s order denying its motion for costs. We have jurisdiction pursuant to

28 U.S.C. § 1291. We reverse the district court’s grant of summary judgment on

the rehire claim and remand for further proceedings. We affirm the magistrate

judge’s evidentiary rulings at trial. We dismiss as moot UPS’s appeal of the

district court’s order on costs.

      We review the grant of summary judgment de novo, see, e.g., Barrientos v.

1801-1825 Morton LLC, 583 F.3d 1197, 1207 (9th Cir. 2009), and we view the

evidence in the light most favorable to the non-moving party, Olsen v. Idaho State

Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We review for abuse of discretion

evidentiary rulings at trial, reversing only if the error was prejudicial. Harper v.

                                           2
City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008). As the facts and

procedural history are familiar to the parties, we do not recite them here except as

necessary to explain our decision.

      The district court erred in granting summary judgment in favor of UPS on

Grimes’s rehire claim.1 Claims under the FEHA for disability discrimination

follow the familiar burden-shifting analysis set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). See Guz v. Bechtel Nat’l, Inc. 8 P.3d 1089, 1113

(Cal. 2000). Grimes met his burden to establish a prima facie case. See id. UPS

articulated a legitimate, non-discriminatory reason for failing to rehire Grimes,

satisfying its burden of production. Raytheon v. Hernandez, 540 U.S. 44, 49 n.3

(2003); see Guz, 8 P.3d at 1114. At the final step of the burden-shifting

framework, Grimes created a triable issue of fact as to whether UPS’s stated reason

for failing to rehire him – that there were no available jobs – was a pretext for

disability discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147 (2000); Guz, 8 P.3d at 1114, 1117-18; see also Scotch v. Art Inst., Inc., 93

Cal. Rptr. 3d 338, 355-56 (Ct. App. 2009) (describing pretext).



      1
        We have considered UPS’s remaining arguments in support of summary
judgment – that Grimes’s claim is time-barred, that his discriminatory re-hire claim
is not independently actionable, and that the jury “decided” the re-hire claim – and
find them without merit.

                                           3
      Grimes presented the following evidence in support of his claim. UPS was

aware of Grimes’s disability and that Grimes had been cleared to return to work

following his termination from UPS. Grimes sent a letter to UPS Workforce

Planning Manager Gary Hollandsworth, stating that he wanted to be rehired at

UPS. That letter did not mention any restrictions on geographic location or the

type of position Grimes would accept. Hollandsworth responded to Grimes,

writing that “there are no openings currently and there are no plans in the

immediate future for outside hiring.” Unbeknownst to Grimes, the “Rehire Status”

box in his personnel record was checked “No.” Grimes provided evidence that

there were job openings at UPS for which he was qualified, including postings

advertised on the internet. After he received Hollandsworth’s letter, Grimes wrote

a second letter to Hollandsworth, expressing his surprise at the assertion that there

were no jobs. Several months later, Grimes again sent a letter to Hollandsworth,

requesting to be considered for re-employment. Grimes never received a response.

A rational trier of fact could infer that UPS had a discriminatory motive in failing

to rehire Grimes. See Reeves, 530 U.S. at 147; Guz, 8 P.3d at 1114. Accordingly,




                                           4
we reverse the grant of summary judgment on the rehire claim and remand for

further proceedings.2

      Turning to the magistrate judge’s evidentiary rulings at trial, we find no

abuse of discretion. To reverse on the basis of an erroneous evidentiary ruling, the

court must conclude that the lower court abused its discretion and that the error

was prejudicial. See Harper, 533 F.3d at 1030. Much of the excluded evidence

related to the availability of jobs subsequent to Grimes’s termination. It was not

relevant to the only claims at trial: failure to provide reasonable accommodation

and failure to engage in the interactive process. Even if some of the excluded

evidence were relevant, Grimes has failed to show that the excluded evidence

“more probably than not” tainted the verdict. Id. Accordingly, we affirm the

magistrate judge’s evidentiary rulings at trial.

      Finally, given our reversal of the district court’s grant of summary judgment

on the rehire claim, we dismiss as moot UPS’s appeal of the district court’s order

denying costs. See, e.g., Provenz v. Miller, 102 F.3d 1478, 1494 (9th Cir. 1996).

      In appeal No. 08-16823, the grant of summary judgment on the rehire claim

is REVERSED and REMANDED for further proceedings consistent with this


      2
       Grimes’s challenge to the magistrate judge’s denial of the motion for
reconsideration is moot. See, e.g., Swirsky v. Carey, 376 F.3d 841, 853 n.24 (9th
Cir. 2004).

                                           5
opinion and the evidentiary rulings at trial are AFFIRMED. Appeal No. 08-17525

is DISMISSED AS MOOT. Costs on appeal are awarded to Grimes.




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