                                                                               FILED
                            NOT FOR PUBLICATION                                OCT 24 2013

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



                            FOR THE NINTH CIRCUIT

DAN DIXON and HEIDI DIXON,                       No. 11-35978

              Plaintiffs - Appellees,            D.C. No. 2:10-cv-00078-LMB

  v.
                                                 MEMORANDUM*
CITY OF COEUR D’ALENE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                              for the District of Idaho
                    Larry M. Boyle, Magistrate Judge, Presiding

                      Argued and Submitted October 1, 2013
                         University of Idaho Law School

Before: SCHROEDER, THOMAS, and N.R. SMITH, Circuit Judges.

       The City of Coeur d’Alene (“the City”) appeals the district court’s exclusion

of polygraph evidence at trial and the denial of the City’s renewed motion for

judgment as a matter law following a jury verdict in favor of Dan and Heidi Dixon.

Because the parties are familiar with the history of this case, we need not recount it

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            I

      Under our deferential standard of review, we conclude that the district court

did not abuse its discretion by excluding any mention that Dixon took—or would

refuse to take—polygraph examinations. As we have previously stated,

introduction of unstipulated polygraph evidence presents a “special risk that the

jury might give excessive weight to the polygrapher’s conclusions,” especially if

the case turns on the relative credibility of the parties. United States v. Ramirez-

Robles, 386 F.3d 1234, 1245–47 (9th Cir. 2004) (internal quotation marks and

citation omitted). Even the introduction of the mere fact of testing, without

disclosure of results, presents the real possibility that the jury could reasonably

likely infer what the results are. United States v. Bowen, 857 F.2d 1337, 1341 (9th

Cir. 1988).

      In this case, the district court conducted the appropriate analysis and

balancing and concluded that the evidence should be excluded. We decline to

second guess the trial judge’s decision.

                                           II

      “We review de novo the district court’s denial of a renewed motion for

judgment as a matter of law.” MHC Fin. Ltd. P’ship v. City of San Rafael, 714

F.3d 1118, 1131 (9th Cir. 2013) (internal quotation marks and citation omitted). In


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reviewing the verdict, “[w]e ask whether the evidence, construed in the light most

favorable to the nonmoving party[,] permits only one reasonable conclusion, and

that conclusion is contrary to the jury’s verdict.” Acosta v. City of Costa Mesa,

718 F.3d 800, 828 (9th Cir. 2013). In other words, the “jury’s verdict must be

upheld if it is supported by substantial evidence, which is evidence adequate to

support the jury’s conclusion, even if it is also possible to draw a contrary

conclusion.” Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008)

(internal quotation marks and citation omitted). We must “disregard all evidence

favorable to the moving party that the jury is not required to believe.” Id.

                                           A

      The City argues that the district court erred in allowing the jury to consider

Dixon’s claim that the City violated his substantive due process rights and was

liable under the “single-incident” failure-to-train theory. In the alternative, the

City argues that there was insufficient evidence to support the jury’s verdict as to

this claim. However, it is unnecessary for us to decide those federal questions,

because the jury returned a general damage verdict, which can be sustained by the

alternative legally viable state law claims upon which the damage verdict also

rests. Webb v. Sloan, 330 F.3d 1158, 1166 (9th Cir. 2003).




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      There were two legally sustainable state law theories of liability,

constructive discharge and negligent infliction of emotional distress, and a general

damage verdict, awarding economic and non-economic damages, as to all theories

of liability (both state and federal claims). In determining whether alternative

theories can sustain the general damage verdict, we consider:

      (1) the potential for confusion of the jury; (2) whether the losing
      party's defenses apply to the count upon which the verdict is being
      sustained; (3) the strength of the evidence supporting the count relied
      upon to sustain the verdict; and (4) the extent to which the same
      disputed issues of fact apply to the various legal theories.

Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 62 F.3d 280,

285-86 (9th Cir. 1995) (internal quotation marks and citation omitted).

      In examining this record, we conclude that the evidence presented was

common to all liability theories, the evidence was sufficiently strong to support the

state law theories, the defenses raised by the City were sufficiently common to

sustain the verdict, and the evidence pertaining to the federal theories did not

present such a potential for jury confusion that the general damage verdict could

not be sustained under the state law claims.

      Examination of the extensive special jury verdict form bolsters this

conclusion. The jury was specifically questioned on all counts and reached a

unanimous verdict concluding that Dixon was (1) constructively discharged by the


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City, (2) terminated without good cause, (3) terminated for reasons that were

arbitrary and lacking a rational basis, and (4) permanently foreclosed from

pursuing any occupation in law enforcement because of the City’s actions.

      The jury also concluded that the City negligently caused Dixon and his wife

emotional distress and awarded economic and non-economic damages. Thus, there

were alternative legally viable theories on which the damage verdict could rest and,

therefore, there was sufficient evidence to sustain the judgment. Accordingly, we

need not reach the merits of the federal claim.

                                          B

      The City does not challenge the jury verdict as to negligent infliction of

emotional distress. It does dispute the sufficiency of the evidence as to the

constructive discharge claim in its renewed motion for judgment as a matter of law.

However, it was undisputed that the City demoted Dixon two ranks, reduced his

pay thirty percent, and branded him as dishonest. An expert witness testified that,

based on his experience as a police officer, it would have been “[t]otally

unreasonable” for Dixon to return to work after being “branded a liar, cheater,

harasser, stealer and thief.” Another expert, a forensic psychologist, testified that

Dixon reasonably felt humiliated and disgraced by the internal investigation, and

that Dixon’s demotion after seventeen years in the police department was “not


                                          -5-
simply a separation of a job,” but “a separation of an individual from their very

identity.” And even without the expert testimony, the jury could rationally

conclude that Dixon’s new working conditions were “so intolerable that a

reasonable person in [his] position would have felt compelled to resign[.]”

Waterman v. Nationwide Mut. Ins. Co., 201 P.3d 640, 645 (Idaho 2009) (citing

Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007)).

      The City argues that Dixon cannot claim intolerable working conditions

because he never showed up to work after his demotion. But this argument ignores

the objective nature of the inquiry—the question is not whether Dixon personally

felt that the conditions were intolerable, but rather whether “a reasonable person in

[Dixon’s] position would have felt compelled to resign.” Id.

                                          III

      In summary, the district court did not abuse its discretion in declining to

admit polygraph evidence. Construing the evidence in the light most favorable to

the plaintiff, there was sufficient evidence to sustain the verdict with respect to the

constructive discharge claim, and the state did not challenge the negligent infliction

of emotional distress claim. Given this conclusion, we need not–and do not–reach

any other issue urged by the parties.

      AFFIRMED.


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