                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 26 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARK J. SCHWARTZ,                                No.   18-15930

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-00709-JCM-VCF
 v.

CLARK COUNTY,                                    MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                            Submitted August 7, 2019**
                               Anchorage, Alaska

Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.

      Mark Schwartz appeals from the grant of summary judgment and the jury

verdict in favor of defendants on his claims of age and disability discrimination

under federal and state law. We have jurisdiction under 28 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291.

      The district court did not err in concluding that Schwartz’s supervisor,

Jacqueline Holloway, was entitled to qualified immunity on Schwartz’s § 1983

claim, because Schwartz failed to carry his burden of showing that it is clearly

established that a county official violates an employee’s constitutional rights by

manipulating job titles to affect the seniority of an employee for purpose of layoff

decisions that are alleged to discriminate on the basis of age or disability. See

Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018) (per curiam). While our prior

order, Schwartz v. Clark Cty., 650 F. App’x 542, 543–44 (9th Cir. 2016), held that

Schwartz had raised a genuine issue of material fact as to whether there was a

constitutional violation, it did not address whether any alleged constitutional

violation was clearly established, and so does not affect our conclusion here.

      We reject Schwartz’s argument that the district court’s statements before the

jury deprived him of a fair trial. Reviewing “the trial record as a whole,” Kennedy

v. L.A. Police Dep’t, 901 F.2d 702, 709 (9th Cir. 1990) abrogated on other

grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam), the district court’s

comments related to the quality and relevance of counsel’s evidence rather than to

counsel’s good faith or integrity, and so do not warrant a retrial, see, e.g., Pau v.




                                            2
Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir. 1991); Shad v. Dean

Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir. 1986).

      The district court did not abuse its discretion when it refused to instruct the

jury that a witness had previously lied under oath because, among other reasons, it

otherwise covered witness credibility in its impeachment instruction. See Jones v.

Williams, 297 F.3d 930, 937 (9th Cir. 2002) (no error when “the judge gave jury

instructions that properly covered the law”). Nor did the district court abuse its

discretion when it denied Schwartz’s request to instruct the jury that pretext could

be shown by direct or indirect evidence because it generally instructed the jury that

it “should consider both direct and circumstantial evidence.” Finally, the district

court did not err when it denied Schwartz’s request to give a mixed-motive jury

instruction and instead instructed the jury that it must determine whether Schwartz

was laid off “because of” his age or disability. The instruction tracked the

language of the statute, see N.R.S. § 613.330(1)(a), (b), which prohibits

discrimination “because of” an individual’s age or disability, and Schwartz failed

to point to Nevada case law that would support a mixed-motive instruction in this

context. Moreover, the Nevada Supreme Court has held that mixed-motive

instructions generally go against Nevada’s strong public policy of at-will

employment. See Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998).


                                          3
While Nevada courts may look to analogous federal law for guidance with

discrimination claims under § 613.330, see, e.g., Liston v. Las Vegas Metro Police

Dep’t, 908 P.2d 720, 721 n.2 (Nev. 1995), we have held that a mixed-motive

instruction is not proper for federal disability discrimination claims, see Murray v.

Mayo Clinic, No. 17-16803, slip op. at 10–11 (9th Cir. Aug. 20, 2019).

      AFFIRMED.




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