                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARTHUR CLEMENS, JR.,                            No.    15-35160

                Plaintiff-Appellee,             D.C. No. 2:13-cv-01793-JPD

 v.
                                                MEMORANDUM*
CENTURYLINK INC.,

                Defendant,

and

QWEST CORPORATION,

                Defendant-Appellant.


ARTHUR CLEMENS, JR.,                            No.    15-35183

                Plaintiff-Appellant,            D.C. No. 2:13-cv-01793-JPD

 v.

CENTURYLINK INC.,

                Defendant,

and

QWEST CORPORATION,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                 James P. Donohue II, Magistrate Judge, Presiding

                      Argued and Submitted October 2, 2017
                              Seattle, Washington

Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.

      Defendant Qwest Corporation appeals from a judgment following a jury

verdict imposing liability for Title VII unlawful employment retaliation against

plaintiff Arthur Clemens. As the parties are familiar with the facts, we do not

recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

      1. Any error by the district court in excluding the typed April 29 and July

18, 2008 interview notes was harmless. Virtually every pertinent detail within the

excluded notes was established, or could have been, through the testimony of those

who participated in the interviews and prepared the notes. Qwest employee John

Rust, who conducted the April 29 interview and prepared the accompanying notes,

testified about his recollections. Shannon Ridge, who assisted Rust, testified on

other subjects and was available to be examined about the April 29 interview.

Brad Butler and Rebecca Flores, who prepared the notes corresponding to the July


1
 We dispose of Clemens’s cross-appeal in an opinion filed concurrently with this
memorandum.

                                         2
18 interview, testified extensively as to what they saw and heard during that

interview, as did Clemens and his union representative Stan Wiley. All six of

these witnesses were subject to cross-examination. And both Qwest and Clemens

used the typed interview notes extensively to refresh the witnesses’ recollections of

the interviews where necessary. Qwest, in other words, achieved through these

witnesses virtually all of what it claims to have lost by the notes’ exclusion. Any

error in excluding the notes was therefore harmless.

      2. Exercising its discretion under Alexander v. Gardner-Denver Co., 415

U.S. 36, 60 n.21 (1974), the district court reasonably concluded that Clemens’s

claims of race discrimination and retaliation were not at issue at the arbitration and

that the arbitral decision was therefore inadmissible. Explicit references to racial

bias, Clemens’s race, and employment retaliation are absent from the excerpts of

the decision to which Qwest points, as well as from the “Discussion and Opinion”

section of the arbitrator’s written decision. Clemens’s union representative,

moreover, certified that he “made the strategic decision not to pursue claims of

race discrimination or retaliation” and “did not present evidence related to those

potential claims” during the arbitration. Given the decision’s at best oblique

references to race discrimination and retaliation and the union representative’s

affidavit, it was well within the district court’s discretion to conclude that the

“record before the arbitrator was not adequate with respect to the issues of race


                                           3
discrimination and retaliation” and that the arbitrator’s decision was therefore

inadmissible. See Costa v. Desert Palace, Inc., 299 F.3d 838, 863 (9th Cir. 2002)

(en banc).

      Moreover, it was within the district court’s discretion to hold the arbitration

decision inadmissible under Federal Rule of Evidence 403. The decision is replete

with explicit findings that Clemens and his version of events were not to be

believed, as well as acerbic language describing Clemens and his conduct. Qwest

itself agrees that the decision “focused mostly on the incredibility of Clemens’s

claims.” Given these features, it was not an abuse of discretion to conclude that

the report was unduly inflammatory and would confuse, mislead, or usurp the

jury’s role in assessing Clemens’s credibility.

      The Washington State Human Rights Commission (“WSHRC”) report, on

the other hand, squarely addressed Clemens’s race-discrimination and retaliation

claims and was admissible in its own right. See Heyne v. Caruso, 69 F.3d 1475,

1483 (9th Cir. 1995); Plummer v. W. Int’l Hotels Co., 656 F.2d 502, 504–05 (9th

Cir. 1981). It also avoided the arbitration decision’s credibility findings and

inflammatory rhetoric. In light of these differences, it was not an abuse of

discretion for the district court to exclude the arbitral decision’s text while

admitting the WSHRC report.

      3. The district court did not commit prejudicial error by responding to a jury


                                           4
question on causation by referring the jury to a correct instruction from the court’s

initial charge. “The necessity, extent and character of additional [jury] instructions

are matters within the sound discretion of the trial court.” United States v. Collom,

614 F.2d 624, 631 (9th Cir. 1979) (quoting Wilson v. United States, 422 F.2d 1303,

1304 (9th Cir. 1970)). In the Ninth Circuit, “[t]he ultimate question is whether the

charge taken as a whole was such as to confuse or leave an erroneous impression in

the minds of the jurors.” Powell v. United States, 347 F.2d 156, 158 (9th Cir.

1965) (internal quotation marks omitted).

      We are not persuaded by Qwest’s argument that the district court’s referral

of the jury to the court’s original, legally accurate instruction “left the jury to

decide liability based on two equally erroneous standards of causation: motivating

factor or only factor.” It was far from an abuse of discretion to draw the jury back

to the initial instruction’s undoubtedly correct language and refuse to employ a

formulation not provided for in this circuit’s model civil jury instructions. While

the district court’s answer stopped short of affirmatively instructing the jury not to

apply the erroneous causation standards the jury had referenced in its question, the

language of the court’s original charge was sufficient to clarify that neither

standard was the correct one and that the but-for test alone was to govern the jury’s

consideration of Clemens’s retaliation claim. None of the authorities Qwest offers

compels a contrary conclusion.


                                            5
      In any event, any error was harmless. When discussing the proper response

to the jury’s question with the district court, Qwest requested that the court instruct

the jury that but-for causation “requires proof that the unlawful retaliation would

not have occurred in the absence of the alleged wrongful action or actions of the

employer.” But this proposed language was substantially similar to that of the

district court’s original instruction and lacked any admonition that the jury was not

to apply the two incorrect causation standards it had articulated in its question—the

very same defect to which Qwest now takes exception. Given the similarities

between Qwest’s proposed answer and the one the district court provided, it is

unlikely that the jury would have been dispelled of the grave confusion Qwest

ascribes to it had the district court used Qwest’s language instead. It is more

probable than not, in other words, that the court’s refusal to respond to the jury as

Qwest requested, if erroneous, was harmless. See Clem v. Lomeli, 566 F.3d 1177,

1182 (9th Cir. 2009).

      AFFIRMED.




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