                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 29 2013

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




                            FOR THE NINTH CIRCUIT



MARTHA SLAUGHTER-PAYNE,                          No. 11-16815

              Plaintiff - Appellant,             D.C. No. 2:03-cv-02300-ROS

  v.
                                                 MEMORANDUM *
ERIC K. SHINSEKI, Secretary of the
Department of Veterans Affairs,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Roslyn O. Silver, Chief District Judge, Presiding

                       Argued and Submitted March 11, 2013
                             San Francisco, California

Before: WALLACE, McKEOWN, and IKUTA, Circuit Judges.

       Martha Slaughter-Payne appeals from the district court’s judgment in favor

of Eric Shinseki, as Secretary of the Department of Veterans Affairs, after the jury

returned a verdict denying her employment discrimination claims. She challenges

various district court evidentiary rulings involving her employer, Veterans


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Administration Medical Center (VAMC). Slaughter-Payne alleged that VAMC

took adverse employment actions against her because of her prior involvement in

protected activities, in violation of 42 U.S.C. § 2000e-3(a). We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

      The district court’s order granting Shinseki’s motions in limine, prohibiting

Slaughter-Payne from introducing evidence of her pre-August 2001 protected

activities, may have been too restrictive. This court’s mandate in an earlier appeal,

which reversed the summary judgment on the retaliation claim, left room for the

introduction of certain background evidence. The excluded evidence was relevant

to Slaughter-Payne’s relationship with John Fears, VAMC’s director, and met the

low bar for relevancy under Federal Rule of Evidence 401. Despite the district

court’s initial in limine ruling, at trial the court permitted Slaughter-Payne’s

attorney to question Fears about a spectrum of Slaughter-Payne’s pre-August 2001

protected activities, thus revealing the essence of her relationship with Fears and

her prior activity. Even if the initial ruling was overly restrictive, the testimony at

trial sufficiently remedied Slaughter-Payne’s objection. Because “it is more

probable than not that the jury would have reached the same verdict even if

[further] evidence had been admitted,” the evidentiary ruling was not prejudicial.

Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005) (citation omitted).


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      The district court’s rulings limiting testimony from Nathaniel Payne and

Mark Wright were not an abuse of discretion. The district court properly

determined that as a lay witness Payne could not testify to his opinion regarding

VAMC’s budget. Fed. R. Evid. 701 (“If a witness is not testifying as an expert,

testimony in the form of an opinion is limited to one that is . . . not based on

scientific, technical, or other specialized knowledge within the scope of Rule

702.”). Payne’s proffered testimony is not the type of opinion that results from “a

process of reasoning familiar in everyday life.” Fed. R. Evid. 701 Advisory

Committee Notes. The district court also permissibly limited Wright’s testimony

about VAMC’s budget because there was a legitimate question as to whether

Wright had knowledge about the relevant fiscal year. Jeff D. v. Otter, 643 F.3d

278, 283 (9th Cir. 2011) (“A district court abuses its discretion if it does not apply

the correct law or if it rests its decision on a clearly erroneous finding of material

fact.”) (internal citation and quotation marks omitted).

      Finally, the district court permissibly excluded written statements and

limited the opinion testimony of Slaughter-Payne’s physician, Dr. Keller, who

identified workplace hostility as the cause of Slaughter-Payne’s medical

symptoms. Although treating physicians may “testify to and opine on what they

saw and did” without complying with the requirements for expert testimony,


                                           -3-
“when a treating physician morphs into a witness hired to render expert opinions

that go beyond the usual scope of a treating doctor’s testimony, the proponent of

the testimony must comply with Rule 26(a)(2).” Goodman v. Staples the Office

Superstore, LLC, 644 F.3d 817, 819–20 (9th Cir. 2011). Because Slaughter-Payne

first saw Dr. Keller over a year after the alleged retaliation took place, and after

Slaughter-Payne had initiated the underlying EEOC complaint, the district court

properly subjected Dr. Keller’s opinion about causation to the requirements for

expert testimony, and then properly excluded his opinion on that basis.

      Despite the exclusion, at trial Shinseki nevertheless used a portion of one of

Dr. Keller’s written statements regarding causation to impeach Slaughter-Payne.

The district court appropriately allowed Slaughter-Payne’s counsel to read the

remainder of that statement to the jury. Fed. R. Evid. 106 (“If a party introduces

all or part of a writing or recorded statement, an adverse party may require the

introduction, at that time, of any other part—or any other writing or recorded

statement—that in fairness ought to be considered at the same time.”). The district

court’s remedy was not in error.

      AFFIRMED.




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