                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 21 2013

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




                            FOR THE NINTH CIRCUIT



ALICE ROBIN,                                      No. 11-55131

              Plaintiff - Appellant,              D.C. No. 2:09-cv-06235-PJW

  v.
                                                  MEMORANDUM *
CITY OF MONROVIA,

              Defendant - Appellee.



                    Appeal from the United States District Court
                         for the Central District of California
                    Patrick J. Walsh, Magistrate Judge, Presiding

                        Argued and Submitted March 4, 2013
                               Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and KENNELLY, District Judge.**

       Appellant Alice Robin is a former employee of the City of Monrovia. She

sued the City for allegedly retaliating against her, in violation of Title VII, the Age



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.

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Discrimination in Employment Act, and the California Fair Employment and

Housing Act, after she filed complaints with the Equal Employment Opportunity

Commission. At trial, the jury was instructed to consider whether four separate

actions by the City—including the offer of a retirement package known as the

“Golden Handshake”—were retaliatory acts. The jury returned a verdict in favor

of the City and the court entered judgment accordingly. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1. Robin argues that the district court erred by denying her several motions

for judgment as a matter of law. We find no error. First, a denial of a motion for

summary judgment is not subject to appellate review after a trial on the merits.

Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir. 1987). Second,

the district court did not err in denying Robin’s motion for a directed verdict,

motion for judgment as a matter of law, and renewed motion for judgment as a

matter of law. Such motions may only be granted when “the evidence permits only

one reasonable conclusion.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,

961 (9th Cir. 2009) (internal quotation marks omitted); see also Fed. R. Civ. P. 50.

Here, the district court correctly concluded that the case turned on different

inferences that a trier of fact could draw from evidence about what actions the

parties took and why they took them.


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      2. Robin further argues that the district court erred by not giving a jury

instruction that the settlement agreement offered to her as part of the “Golden

Handshake” retirement program did not comply with the Older Workers Benefit

Protection Act (OWBPA). We do not think the district court abused its discretion

by failing to give this instruction in light of the court’s concern about confusing the

jury. We do, however, conclude that the district court erred by declining to give an

instruction setting forth the OWBPA’s requirements. A party is entitled to an

instruction about her theory of the case if it is (1) supported by law, (2) has

foundation in the evidence, and (3) was not covered by other instructions. Dang v.

Cross, 422 F.3d 800, 804-05, 809 (9th Cir. 2005); Jones v. Williams, 297 F.3d 930,

934 (9th Cir. 2002). Here, one of Robin’s theories of her case was that the City

committed an adverse act when it offered her a settlement agreement that required

her to waive her right to consult an attorney, did not give her the requisite number

of days to consider the settlement, and did not inform her of other employees who

were eligible or selected for the retirement incentive program, all in violation of the

OWBPA. See 29 U.S.C. § 626(f)(1). Robin’s theory was that the mere offer of

such a settlement—despite the fact that she did not accept it—was a retaliatory act.

Although the district court suggested that Robin argue to the jury that the

settlement violated the OWBPA, without a legal instruction, there was little to


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guide the jury’s deliberations on the issue. Robin was therefore entitled to a jury

instruction setting forth the OWBPA’s requirements, and the district court erred in

not giving such an instruction.

      3. Although we find error, we conclude that it was harmless. An error in

jury instructions in a civil case does not require reversal if it is “‘more probable

than not that the jury would have reached the same verdict’ had it been properly

instructed.” Galdamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005) (quoting

Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005)). Here, the jury was

instructed to consider whether four separate acts were retaliatory, including the

City’s decision to reduce Robin’s position to half-time and its ultimate decision to

lay her off. In light of the evidence at trial, Robin’s claim that these acts were

retaliatory was stronger than her claim that the offer of the Golden Handshake was

retaliatory. This is especially true because the evidence at trial showed that the

City had a good-faith reason for asking Robin to sign the settlement agreement on

an expedited schedule, that the City ultimately gave her extra time to consider the

settlement agreement, and that she did consult with an attorney before rejecting the

settlement offer. On this record, we conclude that a properly instructed jury

probably would not have found that the offer of the Golden Handshake was

retaliatory when it did not find that the City’s reduction of Robin’s position to half-


                                           4
time and the decision to lay her off were retaliatory. We therefore conclude that it

is more probable than not that the jury would have reached the same verdict had it

been properly instructed, and the district court’s failure to give the requested

OWBPA jury instruction was harmless.

      4. Finally, the district court did not abuse its discretion in denying Robin’s

motion for a new trial. “The district court’s denial of a motion for a new trial is

reversible ‘only if the record contains no evidence in support of the verdict’ or if

the district court ‘made a mistake of law.’” Go Daddy Software, 581 F.3d at 962

(quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)). The

record here supports the verdict, and the district court did not make any reversible

errors of law.

      AFFIRMED.




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