                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 26 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL CONTI,                                   No. 14-35674

              Plaintiff-Appellant,               D.C. No. 2:12-cv-00245-RAJ

 v.
                                                 MEMORANDUM*
CORPORATE SERVICES GROUP INC.,
doing business as Channel Services Group,
Inc. doing business as CSG Openline; JAY
LEON, and his marital community,

              Defendants-Appellees.

MICHAEL CONTI,                                   No. 14-35711

              Plaintiff-Appellee,                D.C. No. 2:12-cv-00245-RAJ

 v.

CORPORATE SERVICES GROUP INC.,
doing business as Channel Services Group,
Inc. doing business as CSG Openline; JAY
LEON, and his marital community,

              Defendants-Appellants.


                    Appeal from the United States District Court


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      for the Western District of Washington
                     Richard A. Jones, District Judge, Presiding

                        Argued and Submitted April 4, 2017
                               Seattle, Washington

Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,** Chief
District Judge.

      1. Plaintiff appeals the district court’s denial of his Rule 60(b) motion to

modify the jury verdict to make Leon jointly and severally liable for the entirety of

the awarded compensatory damages. The district court did not abuse its discretion

in denying Plaintiff’s motion. See Toth v. Trans World Airlines, Inc., 862 F.2d

1381, 1387 (9th Cir. 1988). The district court reasonably concluded that Plaintiff’s

claimed injuries of lost wages and emotional damages were not “indivisible” and

thus Wash. Code Rev. 4.22.030, assigning joint and several liability, did not apply.

      2. On de novo review, we affirm the district court’s denial of Defendants’

Rule 50(a) motion for judgment as a matter of law. See Lakeside-Scott v.

Multnomah County, 556 F.3d 797, 802 (9th Cir. 2009). The jury did not need to

rely on speculation to conclude that Defendants took adverse employment actions

against Plaintiff on the basis of his national origin. Id. at 803. Plaintiff produced

evidence tending to show Defendants’ “proffered justifications ha[d] no basis in


      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
                                           2
fact, [were] unreasonable grounds upon which to base [the adverse employment

actions], or were not motivating factors in employment decisions for other

similarly-situated employees.” Griffith v. Schnitzer Steel Indus., 115 P.3d 1065,

1070 (Wash. Ct. App. 2005). Plaintiff also carried his burden of production to

show defendant Leon was aware of Plaintiff’s national origin through Leon’s own

testimony.

      3. We also affirm the district court’s conclusion that Defendants were not

entitled to judgment as a matter of law as to their “same-decision defense” under

Washington’s Law Against Discrimination. The jury found that Defendants would

have taken the same adverse employment actions in the absence of discriminatory

motives under the “preponderance of the evidence” standard appropriate for federal

law. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003). However, the jury was

never asked whether Defendants had carried their burden to show the same

affirmative defense under state law, which is “clear and convincing evidence.”

Davis v. Dep’t of Labor & Indus., 615 P.2d 1279, 1284 (Wash. 1980) (en banc).

Defendants argue that Davis is no longer controlling as to the burden of proof

required in “same-decision” defenses, but they fail to offer any Washington case

law purporting to overrule Davis.




                                          3
      4. The district court did not abuse its discretion in awarding attorneys’ fees

and costs. See Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th

Cir. 2009).1

      AFFIRMED.




      1
      Appellant’s motion to take judicial notice [Dkt. 60] of pleadings filed in
King County Superior Court for the State of Washington and United States
Bankruptcy Court in Washington is DENIED.
                                          4
