                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           APR 25 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MARY-CLARE PEAK,                                 No. 13-17536

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00903-SMM

 v.
                                                 MEMORANDUM*
FOREVER LIVING PRODUCTS
INTERNATIONAL, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                       Argued and Submitted April 12, 2016
                            San Francisco, California

Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.

      Appellee Mary-Clare Peak appeals a jury verdict in favor of her employer

Forever Living Products (“FLP”) in her action under the Family and Medical

Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. The facts of this case are




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
known to the parties, and we do not repeat them here. We have jurisdiction under

28 U.S.C. § 1291.

                                           I

      Peak first argues that the district court erred by improperly refusing several

requested jury instructions. But the district court’s instructions “fairly and

adequately cover the issues presented,” and were neither misleading nor a

misstatement of the law. Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir.

2000). The relevant Department of Labor regulations were incorporated into the

instructions, and an explicit reference to them would have confused the jury.

Likewise, Peak’s proposed instructions concerning a request for certification of a

serious health condition were irrelevant, because this process occurs after adequate

notice of the need for FMLA leave has been given. Similarly, the court’s

instructions regarding the meaning of “serious health condition” were accurate, and

instructions regarding an employer’s duty to notify employees of the consequences

of failing to comply with its FMLA policy were unnecessary. The district court’s

exclusion of these instructions was not an abuse of discretion.

                                           II

      Peak’s next claim, that the district court erred in excluding evidence of her

sexual harassment allegations, is also without merit. Peak’s allegations were not


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probative of whether Peak provided adequate notice under the FMLA, see Fed. R.

Evid. 401, 402, and their probative value was clearly outweighed by the risk of

undue prejudice to FLP. See Fed. R. Evid. 403.

                                         III

      The district court also properly denied Peak’s motion in limine to exclude

evidence of Peak’s tardiness. Evidence of Peak’s tardiness was relevant because it

described FLP’s point of view when it terminated her, and thus whether FLP’s

actions suggested it had received adequate notice of Peak’s need for leave. By

contrast, Peak’s argument that she should have received discovery as to other

employees’ tardiness is without merit; Peak’s cause of action was for violations of

the FMLA, not disparate treatment.

                                         IV

      Lastly, Peak asserts she was unduly prejudiced by the court’s refusal to

withdraw its discovery sanction. But the district court gave Peak permission to

offer the notes into evidence and provided Peak with the opportunity to correct the

record, which she did by eliciting testimony that the notes had in fact been

produced. Moreover, Peak never moved or otherwise requested that the judge

himself acknowledge error. This claim is waived. See In re Mercury Interactive

Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010).


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AFFIRMED.




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