                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 12 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBERT J. DIEDERICH, individually,              No.    17-35031

                Plaintiff-Appellant,            D.C. No.
                                                10-cv-01558-RAJ
 v.

PROVIDENCE HEALTH & SERVICES,                   MEMORANDUM*
DBA Providence Health & Services-
Washington, DBA Providence St. Peter
Hospital, a Washington corporation; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding

                             Submitted July 10, 2018**
                               Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and RAKOFF,*** Senior
District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

                                          1
      Plaintiff-appellant Robert Diederich graduated from the University of

Washington Medical School in 2004 and entered the family practice medical

residency program at Swedish Hospital in Seattle. He took medical leave from the

program in 2005 and was fired shortly thereafter. He then sued Swedish Hospital

and the program director, Dr. Samuel Cullison, for discrimination based on

disability, and the lawsuit settled in 2006. In 2007, Diederich began his residency

at Providence Hospital in Olympia, Washington. He was fired on September 12,

2008, and that termination was affirmed by a hospital appeals board. Diederich

brought suit against Providence and several individual defendants who supervised

him at the hospital or played a role in his termination. The only claim that went to

trial was Diederich’s allegation that defendants terminated him in retaliation for

bringing a discrimination lawsuit against Swedish Hospital in violation of the

Washington Law Against Discrimination.

      The district court held a five-day trial on this issue. The verdict form first

asked the jury the following question, once for each individual defendant: “Did

Plaintiff prove by a preponderance of the evidence that [the individual defendant]

knew of Plaintiff’s lawsuit against Swedish Hospital during his residency at

Providence?” The jury checked “No” for each defendant and therefore did not

reach the remaining questions.




                                           2
      Diederich appeals several evidentiary rulings by the district court. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Evidentiary rulings are reviewed for abuse of discretion, though we review

the district court’s construction of the Federal Rules of Evidence de novo. Estate of

Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014). Erroneous

rulings are then subject to harmless error review, under which the beneficiary of

the error has the burden of showing that it is more likely than not that the jury

would have reached the same verdict in the absence of the error. Id. at 464-65.

      1.     First, the district court granted Providence’s motion in limine to

exclude supposed evidence of how other residents who had committed errors had

been treated differently from Diederich. As the district court noted, such evidence

would lead to “mini-trials” about those residents’ conduct. Furthermore, in his

briefing on the motion in limine, Diederich failed to adduce any evidence of any

specific similarly situated resident who was treated differently, instead arguing

generally that this category of evidence would be relevant. The time to determine

whether any other resident was similarly situated was before trial, when the district

court could make a determination on that issue without risk of confusing the jury.

But Diederich offered no details or evidence on that score. The district court thus

did not abuse its discretion in barring Diederich from eliciting testimony about

unknown mistakes by other unknown residents and their unknown treatment.


                                          3
      2.     Second, the district court barred the defendant from testifying about

certain individual defendants yelling at him for leaving the hospital while he was

ill in March 2008. Diederich contends that the excluded testimony would have

supported his assertion that he “was punished for taking sick leave and for

complaining about its denial,” and not, as the appeals board found in its report, for

failing “to hand off patients before leaving the facility ill.” Excluding this

testimony was not an abuse of discretion. Taken most favorably to Diederich, the

excluded evidence suggested that Diederich was fired because he left when he was

sick, not because he brought a lawsuit against his previous employer, and

Diederich’s claim was premised on the latter theory. If admitted, therefore, the

evidence, even if tangentially relevant, would have confused the jury by raising

alternate legal theories that were not at issue in this case.

      3.     Last, Diederich objects to the admission of an attachment to his

settlement agreement with Swedish Hospital that he contends included improper

character evidence. Among the terms of that settlement was an agreement that

Cullison would follow a particular script when contacted for references for

Diederich. That script was attached to the agreement and contained both positive

and negative reviews, including a short list of general problems that Diederich had

at Swedish Hospital that led to his termination. It is unclear whether the exhibit

was covered by the district court’s in limine ruling, and Diederich did not object to


                                            4
its admission at trial. Moreover, Diederich opened the door to this evidence by

discussing the positive reviews in this script in his opening statement. The district

court did not err.

      4.     Even assuming the district court erred with regard to the asserted

evidentiary rulings, any error was harmless. The jury found that no individual

defendant knew about the prior lawsuit, and the evidence contested on appeal had

nothing to do with that conclusion.

      AFFIRMED.




                                          5
