                                                                      FILED
                    UNITED STATES COURT OF APPEALS
                                                                       SEP 17 2015
                           FOR THE NINTH CIRCUIT                   MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS




BEVERLY ANETTE RAINES, Principal,             No. 13-35304
Brighton School,
                                              D.C. No. 2:09-cv-00203-TSZ
             Plaintiff,                       Western District of Washington,
                                              Seattle
  And

CHALICE STALLWORTH, Elementary                ORDER
School Teacher,

             Plaintiff - Appellant,

 v.

SEATTLE SCHOOL DISTRICT NO 1, a
municipal corporation,

             Defendant - Appellee.


Before: NOONAN, HAWKINS, and GOULD, Circuit Judges.

      The Clerk shall file the attached amended memorandum disposition in place

of the memorandum disposition filed on September 10, 2015.
                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 17 2015
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BEVERLY ANETTE RAINES, Principal,                No. 13-35304
Brighton School,
                                                 D.C. No. 2:09-cv-00203-TSZ
              Plaintiff,
                                                 AMENDED
  And                                            MEMORANDUM*

CHALICE STALLWORTH, Elementary
School Teacher,

              Plaintiff - Appellant,

 v.

SEATTLE SCHOOL DISTRICT NO 1, a
municipal corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 Thomas S. Zilly, Senior District Judge, Presiding

                           Submitted September 4, 2015**
                               Seattle, Washington

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: NOONAN, HAWKINS, and GOULD, Circuit Judges.

      Chalice Stallworth appeals a jury verdict in favor of defendant Seattle

School District No. 1 (the District). She raises several claims of error, but we

affirm.

      Ms. Stallworth first argues that the district court erred by trying her case

jointly with that of co-plaintiff Audrey Weaver. In a July 1, 2011, order, the

district court asked the plaintiffs to determine whether they “should be divided into

two groups as outlined in [an earlier order] or in some other fashion.” Ms.

Stallworth’s July 18, 2011, response suggested that “[f]or the purpose of trial and

dispositive motions,” she “would like to be grouped” with Ms. Weaver. The court

complied with this request. Ms. Stallworth claims on appeal that the district court

erred in doing so. But because she “both invited the error, and relinquished a

known right” by abandoning a prior motion to sever and asking the court to group

her case with Ms. Weaver’s for trial, any “error is waived and therefore

unreviewable” on appeal. United States v. Perez, 116 F.3d 840, 845 (9th Cir.

1997) (en banc).

      Ms. Stallworth next argues that the district court erred by allowing the

District to refer to her “dishonesty” in its opening statement and closing argument

to the jury. A new trial is appropriate when attorney misconduct “sufficiently


                                          2
permeat[ed] [the] entire proceeding to provide conviction that the jury was

influenced by passion and prejudice in reaching its verdict.” Settlegoode v.

Portland Pub. Sch., 371 F.3d 503, 516–17 (9th Cir. 2004) (quoting Kehr v. Smith

Barney, 736 F.2d 1283, 1286 (9th Cir. 1984)). “There is an even ‘high[er]

threshold’ for granting a new trial where, as here, [appellant] failed to object to the

alleged misconduct during trial.” Id. at 517 (quoting Kaiser Steel Corp. v. Frank

Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986)). There was no error.

The District’s defense at trial was that it did not need to provide Ms. Stallworth

with the accommodation she requested because she interned with another school

district while on unpaid leave in 2007–08, which demonstrated that her injuries

were not as serious as she suggested and justified terminating her contract for

2008–09. The District’s statements about Ms. Stallworth’s dishonesty regarding

her need for an accommodation were at the heart of its theory of the case and were

not improper.

      Next, Ms. Stallworth argues that the district court erred by limiting the

plaintiffs’ trial presentation to fifteen hours shared between her and Ms. Weaver.

Because Ms. Stallworth did not object at trial to the district court’s time limitation,

she must show an obvious error that affected her fundamental rights and “reach[ed]

the pinnacle of fault” envisioned by the plain error standard. C.B. v. City of


                                           3
Sonora, 769 F.3d 1005, 1018 (9th Cir. 2014) (en banc) (quoting Hemmings v.

Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002)). Ms. Stallworth has not

identified any specific witness she could not call, crucial testimony she could not

present, or exhibit she could not show, nor does she explain how she was

prejudiced by the time limitation. The district court did not commit plain error.

      Ms. Stallworth also argues that the district court erred by including a

sentence in Jury Instruction No. 14B that related solely to Ms. Weaver’s claim and

stated that the District did not have a duty to provide her with a new supervisor.

She relatedly claims that the court erred by not providing “further instruction about

the duty to affirmatively assist in finding alternative jobs and reassigning disabled

individuals,” and that the court should have instructed the jury that school districts

“do have a duty to transfer disabled teachers to positions for which they qualify in

and/or out of certificated employment.” Ms. Stallworth did not object to this

instruction at trial, however, so we review for plain error. C.B., 769 F.3d at 1018.

We conclude that the jury instruction adequately captured Washington state law by

stating: “An employer must provide a reasonable accommodation for an employee

with an impairment unless the employer can show that the accommodation would

impose an undue hardship on the employer” and by providing examples of an

acceptable reasonable accommodation under the Washington Law Against


                                           4
Discrimination. The district court did not plainly err by omitting the more specific

instruction that Ms. Stallworth now requests on appeal.

      Finally, Ms. Stallworth argues that the district court abused its discretion by

refusing to instruct the jury about the meaning of “employment contract” under

Washington state law to supplement an instruction that implied that Ms. Stallworth

was not entitled to a reasonable accommodation if she had signed employment

contracts with two school districts for the same term. The district court denied the

request because it was “not aware of any such pattern instruction” for the term

“employment contract” and it would not “give it unless there is such a pattern

instruction.” Ms. Stallworth did not object further, nor did she propose an

instruction defining these terms. The district court did not abuse its discretion by

denying the instruction because of Ms. Stallworth’s lack of specificity. See United

States v. Flores-Solis, 433 F.2d 945, 946 (9th Cir. 1970) (per curiam). Nor are the

words “employment contract” confusing or technical such that the jury required

further guidance to interpret the instruction. See United States v. Sarno, 73 F.3d

1470, 1485 (9th Cir. 1995).

      AFFIRMED.




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