                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 16 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWARD ALVARADO,                                 No. 08-15940

             Plaintiff - Appellee,               D.C. No. 3:04-cv-00098-SI

 and
                                                 MEMORANDUM *
JOHN AZZAM; CHARLOTTE
BOSWELL; TANDA BROWN; BERTHA
DUENAS; PERNELL EVANS;
CHARLES GIBBS; JANICE LEWIS;
MARIA MUNOZ; KEVIN NEELY;
LORE PAOGOFIE; DYRONN
THEODORE; LASONIA WALKER;
CHRISTOPHER WILKERSON,

             Plaintiffs,

  v.

FEDERAL EXPRESS CORPORATION, a
Delaware corporation, DBA Fedex
Express,

             Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                        Argued and Submitted May 12, 2010

                              San Francisco, California

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.

      Defendant-appellant Federal Express Corporation (“FedEx”) appeals the

district court’s entry of an amended judgment for plaintiff-appellee Edward

Alvarado. We affirm.

      We review de novo the district court’s denial of FedEx’s motion for

judgment as a matter of law. See Harper v. City of Los Angeles, 533 F.3d 1010,

1021 (9th Cir. 2008). Alvarado introduced evidence from which the jury could

reasonably conclude that he suffered a materially adverse employment action and

that there was a causal connection between his complaints and the adverse

employment action.

      The district court did not abuse its discretion in ordering remittitur as

accepted by Alvarado in lieu of a new trial. The district court’s order of remittitur

was consistent with the evidence at trial and an appropriate exercise of the court’s

discretion.



                                           2
      We reject FedEx’s additional claims of error. First, the district court did not

abuse its discretion in allowing testimony regarding other employees’ claims of

discrimination and retaliation. The testimony was relevant to rebut FedEx’s

proffered reasons for the adverse employment actions, see Heyne v. Caruso, 69

F.3d 1475, 1481-82 (9th Cir. 1995), and did not prejudice FedEx. Second, the

district court did not abuse its discretion in admitting testimony regarding the racial

slur allegedly made by senior manager Aaron Holstein. The testimony was very

limited and did not unfairly prejudice FedEx. Third, the district court did not

abuse its discretion in denying FedEx’s request with regard to interviewing

Satchell class members. Class counsel in Satchell had the right to refuse to consent

to interviews on his clients’ behalf, and the district court was not required to order

that FedEx be permitted to conduct interviews. FedEx has not demonstrated what

testimony the witnesses would have provided to support its defense. Even if the

district court erred, FedEx has not shown prejudice.

      The district court did not abuse its discretion in refusing to give a jury

instruction on the business judgment rule. The jury instructions set forth the

essential elements Alvarado needed to prove his retaliation claim. See Browning v.

United States, 567 F.3d 1038, 1041 (9th Cir. 2009).

      AFFIRMED.


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