                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 01 2014

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



                            FOR THE NINTH CIRCUIT


KIMBERLY MELODY MITCHELL,                        No. 13-36124

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00141-BR

  v.
                                                 MEMORANDUM*
POSTMASTER GENERAL, UNITED
STATES POSTAL SERVICE,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                    Argued and Submitted November 18, 2014
                                Portland, Oregon

Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.

       Kimberly Melody Mitchell appeals the district court’s judgment in favor of

the Postmaster General, United States Postal Service. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Because Plaintiff did not timely challenge the district court’s instructions,

we review for plain error. See Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1230

(9th Cir. 2011) (citing Fed. R. Civ. P. 51(d)(2)). The court’s error in stating the

causation standard in Plaintiff’s Title VII retaliation claim as “sole” instead of

“but-for” cause is not reversible because it was more probably than not harmless.

See Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013). Plaintiff’s

counsel argued that a sole cause—discrimination, not Plaintiff’s

absences—resulted in her termination. The jury also found for Defendant on

Plaintiff’s related Rehabilitation Act retaliation claim, which was nearly identical

except that it required a lower “motivating factor” causation standard.

      Because Plaintiff did not make an offer of proof, we also review her

evidentiary challenge for plain error. See Fed. R. Evid. 103(e); United States v.

Hayat, 710 F.3d 875, 894 (9th Cir. 2013). The district court’s relevance-based

exclusion of testimony by Plaintiff’s supervisor was not plainly erroneous. These

complaints were mere allegations of wrongdoing. Plaintiff was not precluded from

asking the witness about actual episodes of discrimination or about adjudications

or findings of discrimination.

      AFFIRMED.



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