                                                                            FILED
                            NOT FOR PUBLICATION                              APR 09 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CLAUDIA DOSSAT,                                  No. 12-17678

              Plaintiff - Appellee,              D.C. No. 2:09-cv-00245-KJD-PAL

  v.
                                                 MEMORANDUM*
F. HOFFMANN-LA ROCHE LTD., DBA
Roche Labs and ROCHE
LABORATORIES, INC.,

              Defendants - Appellants.


                   Appeal from the United States District Court
                             for the District of Nevada
                  Kent J. Dawson, Senior District Judge, Presiding

                     Argued and Submitted February 11, 2015
                            San Francisco, California

Before: THOMAS, Chief Judge, and McKEOWN and W. FLETCHER, Circuit
Judges.

       Hoffman-La Roche Inc. and Roche Laboratories Inc. (collectively, “Roche”)

appeal the district court’s denial of its motions for judgment as a matter of law with


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
respect to Randy Dossat’s claim for intentional infliction of emotional distress

(“intentional infliction claim”).1 We have jurisdiction under 28 U.S.C. § 1291 and

review de novo the denial of Roche’s motions for judgment as a matter of law.

Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 941 (9th Cir.

2011). We affirm. Because the parties are familiar with the factual and legal

history of the case, we need not recount it here.

                                            I

      The district court correctly concluded that issues of material fact precluded it

from granting Roche’s Rule 50(a) motions for judgment on Dossat’s intentional

infliction claim. The district court’s decision to submit the intentional infliction

claim to the jury was therefore proper. Furthermore, “while a district court is

permitted to enter judgment as a matter of law [under Rule 50(a)] when it

concludes that the evidence is legally insufficient, it is not required to do so.”

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006)

(emphasis added). “To the contrary, the district courts are, if anything, encouraged

to submit the case to the jury, rather than granting such motions.” Id.




      1
        While this appeal was pending, Claudia Dossat was substituted as a party
for her spouse, Randy Dossat.

                                           2
                                           II

      Roche contends that the district court should have granted its Rule 50(b)

motion because Dossat failed to present sufficient evidence to prevail on his

intentional infliction claim as a matter of law.

      “We review a jury’s verdict for substantial evidence in ruling on a properly

made motion under Rule 50(b).” EEOC v. Go Daddy Software, Inc., 581 F.3d 951,

961 (9th Cir. 2009). Thus, the “‘jury’s verdict must be upheld if it is supported by

. . . evidence adequate to support the jury’s conclusion, even if it is also possible to

draw a contrary conclusion.’” McCollough v. Johnson, Rodenburg & Lauinger,

LLC, 637 F.3d 939, 955 (9th Cir. 2011) (citation omitted).

      In this case, substantial evidence supports the jury’s conclusion that Roche’s

conduct toward Dossat was “extreme and outrageous.” Specifically, Dossat

presented evidence showing that his supervisor yelled and cursed at him; that his

superior made a trigger-pulling gesture to indicate that Dossat was about to be

fired; and that Roche reprimanded him and docked his pay, despite his strong sales

numbers, because he filed an age discrimination charge with the Nevada Equal

Rights Commission based on his being fired just before becoming eligible for a

larger retirement package. Taken together, particularly in light of our deferential




                                            3
standard of review, this evidence is sufficient to support the jury’s verdict on his

intentional infliction claim.

      Roche’s argument that an employer’s personnel management decisions may

not, as a matter of Nevada law, give rise to intentional infliction claim liability is

not supported by Nevada law. See Dillard Dep’t Stores, Inc. v. Beckwith, 989 P.2d

882, 886 (Nev. 1999) (upholding a jury verdict in favor of an employee who

brought an intentional infliction claim against her former employer based on the

employer’s personnel management actions); Shoen v. Amerco, Inc., 896 P.2d 469,

476 (Nev. 1995) (rejecting defendant-employer’s “argument that Nevada does not

recognize an action for intentional infliction of emotional distress in the

employment context”). Roche’s contention that the jury’s verdict must be

overturned for public policy reasons is likewise precluded by Dillard.

      AFFIRMED.




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