                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                APR 18 2014

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

DOUGLAS A. BROWN,                                No. 12-35881

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00536-BLW

  v.
                                                 MEMORANDUM*
CITY OF CALDWELL, a subdivision of
the State of Idaho,

              Defendant - Appellee.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted April 10, 2014
                               Seattle, Washington

Before: KOZINSKI, Chief Judge, and RAWLINSON and BEA, Circuit Judges.

       We review the district court’s rejection of Plaintiff-Appellant Douglas

Brown’s proposed jury instruction de novo because the rejection was based on a

question of Idaho law. See Snake River Valley Elec. Ass’n v. PacifiCorp, 357 F.3d

1042, 1052 n.11 (9th Cir. 2004). The Idaho Supreme Court has not held that the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
causation standard for retaliatory discharge claims under the Idaho Protection of

Public Employees Act, Idaho Code § 6-2101 et seq., is less stringent than the

standard of “but for” causation. See Curlee v. Kootenai Cnty. Fire & Rescue, 224

P.3d 458 (Idaho 2008). Moreover, while Jury Instruction 18 did require “but for”

causation, it also stated that the protected activity “need not be the only cause” of

the employment action. Because the district court’s jury instruction did not

conflict with Idaho law, we AFFIRM.

      We do not review Brown’s claim regarding the burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because

Brown has not proved he challenged this aspect of the jury instructions at the

district court. See Bird v. Lewis & Clark College, 303 F.3d 1015, 1022 (9th Cir.

2002).

      AFFIRMED.




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