                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 22 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LORETTA H. CHEEKS,                               No.   15-15658

              Plaintiff-Appellant,               D.C. No. 2:12-cv-01543-JAT

 v.
                                                 MEMORANDUM*
GENERAL DYNAMICS C4 SYSTEMS
INC.,

              Defendant-Appellee,

 and

GENERAL DYNAMICS
CORPORATION,

              Defendant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                       Argued and Submitted March 15, 2017
                            San Francisco, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: McKEOWN and BYBEE, Circuit Judges, and MOLLWAY,** District
Judge.

      Loretta Cheeks appeals from the district court’s judgment issued against her

on her claim under the Family and Medical Leave Act (FMLA) and General

Dynamics C4 Systems, Inc.’s counterclaim for breach of contract. We affirm.

      1.     Cheeks argues that the district court erred by refusing to instruct the

jury that an employer, before terminating an employee on FMLA leave for subpar

performance, is required to adjust its performance expectations in accordance with

the employee’s FMLA leave. “We review jury instructions as a whole to

determine whether they are misleading or inadequate to guide the jury’s

deliberation,” United States v. Vallejo, 237 F.3d 1008, 1024 (9th Cir. 2001), “and

the refusal to give a requested instruction will not be overturned ‘if the charge as a

whole adequately covers the theory of the [plaintiff],’” United States v. Bradshaw,

690 F.2d 704, 710 (9th Cir. 1982) (quoting United States v. Kaplan, 554 F.2d 958,

968 (9th Cir. 1977)). The district court did not err in rejecting Cheeks’s proposed

instructions because the instructions that it gave adequately covered Cheeks’s

theory of the case. Indeed, nothing prevented Cheeks from arguing to the jury that

General Dynamics interfered with her FMLA rights by firing her for failing to


      **
              The Honorable Susan Oki Mollway, United States District Judge for
the District of Hawaii, sitting by designation.
                                           2
meet the performance standards of a full-time employee who did not take FMLA

leave. See Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003) (stating that

an employer interferes with an employee’s FMLA rights when it “use[s] [the

employee’s] FMLA leave as a factor in the decision to terminate her”).

      2.     Cheeks next challenges the district court’s exclusion of a document

General Dynamics prepared after Cheeks’s termination on the ground that the

document lacked foundation and was irrelevant to Cheeks’s claims. We review the

district court’s evidentiary rulings for an abuse of discretion, United States v.

Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016), and deem any error “harmless if it is

‘more probable than not that the erroneous [exclusion] of the evidence did not

affect the jury’s verdict,’” United States v. Ramirez-Robles, 386 F.3d 1234, 1244

(9th Cir. 2004) (quoting United States v. Vizcarra-Martinez, 66 F.3d 1006,

1016–17 (9th Cir. 1995)). Even assuming that the district court improperly

excluded Cheeks’s proffered evidence, the error was harmless because multiple

witnesses testified to the same facts as those set forth in the excluded document.

      3.     Finally, Cheeks contends that the district court erred in granting

summary judgment in favor of General Dynamics on its counterclaim because, in

Cheeks’s view, there was no evidence of any damages resulting from her breach of

the confidentiality agreement. See Watson Const. Co. v. Amfac Mortg. Corp., 124


                                           3
Ariz. 570, 581 (Ct. App. 1979) (listing actual damages as one element of a breach

of contract claim). In the confidentiality agreement, however, Cheeks agreed to

“reimburse and indemnify [General Dynamics] for the actual costs incurred by

[General Dynamics] in enforcing [the agreement], including but not limited to

attorneys’ fees” because any “failure to comply with [the agreement would]

irreparably harm the business of [General Dynamics].” The attorney’s fees

General Dynamics expended on enforcing the confidentiality agreement therefore

constitute actual damages that General Dynamics was entitled to recover. And the

district court did not err by calculating the damages itself because there was no

genuine dispute of material fact as to the amount of attorney’s fees due. See Fed.

R. Civ. P. 56(a).

      AFFIRMED.




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