                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 24 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVID NOEL SMITH,                                No. 08-36059

             Plaintiff - Appellant,              D.C. No. 3:07-cv-05125- RBL

  v.
                                                 MEMORANDUM *
JAQUELYN AUFDERHEIDE; et al.,

             Defendants - Appellees.



DAVID NOEL SMITH,                                No. 09-35008

             Plaintiff - Appellee,               D.C. No. 3:07-cv-05125- RBL

  v.

JAQUELYN AUFDERHEIDE,

             Defendant,

 and

RANDY CASTEEL; et al.,

             Defendants - Appellants.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted March 9, 2010**
                               Seattle, Washington

      Before:      TASHIMA, FISHER, and BERZON, Circuit Judges.

      Plaintiff David Smith appeals from a judgment entered on a jury verdict in

favor of Defendants, Smith’s former supervisors Randy Casteel and John Brand,

and his former employer, Kitsap County, Washington. Smith claimed that

Defendants violated 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seq., and that they committed state law torts against him.

We have jurisdiction over Smith’s appeal from the final judgment pursuant to 28

U.S.C. § 1291, and we affirm.

                                     BACKGROUND

      Smith asserts that he was fired from his position at the Public Works

Department of Kitsap County for engaging in speech complaining of illegal

employment practices within the department, which is protected by the First

Amendment. Defendants contend that Smith was terminated for serious

misconduct unrelated to his speech. Over several years, Smith had made hundreds

       **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

                                         2
of hours of secret recordings of conversations he had with co-workers and

members of the public. Defendants assert that Smith was fired because the

recordings violated County policy and the Washington Privacy Act, Wash. Rev.

Code § 9.73.030(1)(b). They also assert that Smith committed an act of

insubordination that was an independent ground for termination when he deleted

files from his County computer after he had been directed not to do so by his

supervisor during an investigation into his recordings.

      The district court held an eight-day jury trial on the claims that had survived

Defendants’ motions for dismissal and summary judgment. The jury returned a

verdict in favor of Defendants on all liability questions. Smith timely appealed.

                                    DISCUSSION

       We review a district court’s decisions to admit or exclude evidence for

abuse of discretion. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,

384 (2008). We will reverse only if the trial court abused its discretion and the

error was prejudicial, meaning it “more probably than not . . . tainted the verdict.”

Harper v. City of L.A., 533 F.3d 1010, 1030 (9th Cir. 2008).

      1.     The district court did not abuse its discretion in ruling that Smith

could not testify about his subjective belief that the recordings he made were legal.

Such testimony would not be relevant and is therefore inadmissible. See Fed. R.


                                          3
Evid. 401, 402 (evidence is relevant if it has “any tendency to make the existence

of a fact that is of consequence to the determination more probable or less probable

than it would be without the evidence”). The real issue in this case was what

motivated Brand and Casteel to terminate Smith. In order to prevail on his claims,

Smith needed to convince the jury that his protected speech substantially motivated

Brand and Casteel to fire him. Smith’s subjective belief as to whether his actions

were legal would not make it more or less probable that his recordings, as opposed

to his protected activities, were the reason that Brand and Casteel fired him.

      2.     The district court also did not abuse its discretion by excluding

evidence concerning the truth of the discriminatory acts of which Smith

complained. To prevail on his claim of retaliation in violation of Title VII, Smith

had to prove that he “engaged in . . . an activity protected under federal law . . .

regarding a good faith charge against an employer under Title VII.” To establish

his unlawful retaliation state law claim, he had to prove that he was fired for

“opposing what [he] reasonably believed to be discrimination . . . or for providing

information to or participating in a proceeding to determine whether discrimination

or retaliation occurred.” Whether defendants are liable for discrimination or

retaliation against anyone beside Smith was not relevant to proving these elements,

and evidence going to the merits of that question was properly excluded. The


                                           4
district court thus reasonably limited the evidence to Smith’s activities opposing

alleged discrimination likely known by the decision makers, which included

evidence going to whether Smith’s belief that the discrimination in question had

occurred was reasonable.

      3.     The district court did not abuse its discretion by allowing defendants

to introduce excerpts of Smith’s secret recordings over Smith’s objection that they

were not properly authenticated, were not relevant, and were more prejudicial than

probative. See Fed. R. Evid. 901, 401, & 403.

      First, Smith’s authentication argument is meritless. The record indicates

that the recordings were authenticated.1

      Second, the tapes were highly relevant to the central issue in the case,

Casteel’s state of mind when he fired Smith. Casteel reviewed all of the

recordings, and their content was relevant to his decision that Smith’s conduct

warranted termination. The tapes were also relevant to impeach Smith’s

statements and his credibility.

      As to the third issue, we recognize that the recordings were potentially

prejudicial to Smith. However, “a district court virtually always is in the better

      1
             Smith’s arguments about the admissibility of transcripts of taped
excerpts are beside the point because the transcripts were not admitted into
evidence.

                                           5
position to assess the admissibility of the evidence in the context of the particular

case before it,” particularly with respect to balancing probativeness against

potential prejudice under Rule 403. See Sprint/United Mgmt., 552 U.S. at 387.

Here, the recordings were highly probative, and it was well within the district

court’s discretion to admit them.

      4.     Smith’s argument that Brand, Casteel, and Aufderheide should not

have been granted qualified immunity is nonsensical in light of the fact that they

were not granted any sort of immunity.

      5,     Finally, because we uphold the jury verdict in Smith’s appeal, we

need not reach any of the issues raised by Defendants in their protective cross-

appeal.

      The judgment of the district court is AFFIRMED.




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