                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 17 2016

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



                            FOR THE NINTH CIRCUIT


HOSETTA ZERTUCHE,                                No. 14-15047

              Plaintiff-Appellant,               D.C. No. 4:11-cv-03691-YGR

  v.
                                                 MEMORANDUM*
JAMES GLEASON,

              Defendant-Appellee.

                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                     Argued and Submitted February 11, 2016
                            San Francisco, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and ADELMAN,** District
Judge.

       A jury returned a verdict in favor of defendant James Gleason on plaintiff

Hossetta Zertuche’s First Amendment retaliation claim under 42 U.S.C. § 1983.

Zertuche now appeals (1) the district court’s jury instruction defining a “substantial


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
or motivating factor” in relation to her indirect theory of liability and (2) the district

court’s decision to dismiss her punitive damages claim after Zertuche concluded her

case-in-chief.

      We affirm the district court because neither decision Zertuche challenges was

prejudicial. On its special verdict, the jury concluded that Zertuche had suffered no

adverse employment action and did not reach the question of whether Gleason’s

actions were a substantial or motivating factor, and thus any error in the substantial

or motivating factor definition was harmless. Chess v. Dovey, 790 F.3d 961, 977 (9th

Cir. 2015). Zertuche contends that the definition was not harmless, arguing that the

verdict question on whether Zertuche suffered an adverse employment decision could

have confused the jury by using language from the substantial and motivating factor

definition, possibly leading it to consider the substantial and motivating factor

definition when determining the adverse employment action question. We disagree

and find that the instructions and verdict were straightforward and not likely to

confuse the jury. Finally, because we affirm the jury’s finding of no liability, any error

the court made in dismissing the punitive damages claim was also harmless. Bulgo v.

Munoz, 853 F.2d 710, 716 (9th Cir. 1988).

      AFFIRMED.




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