87 F3d 1320 Mines v. Olsten Corp Inc

87 F.3d 1320

Barbara MINES, Plaintiff-Appellant,
v.
OLSTEN CORP. INC., Olsten Home Healthcare, Defendants-Appellees.

No. 95-15331.

United States Court of Appeals, Ninth Circuit.

Submitted June 14, 1996.*
Decided June 19, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: SNEED, PREGERSON and KOZINSKI, Circuit Judges.


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1

MEMORANDUM**

2

1. The jury found that race was not a motivating factor in Olsten's decision not to hire Mines. Were there error in the district court's rejection of Mines's proposed jury instruction as to pretext, it was harmless.

3

2. Mines's position before trial was that she should initially be required to prove only a prima facie case of race discrimination. She proposed a jury instruction during trial, however, that initially required her to prove by a preponderance of the evidence that her race was a motivating factor in her discharge. The district court gave an instruction substantially identical, in relevant part, to the one Mines proposed. For the first time in her reply brief, she argues that she had meant to propose the prima facie instruction rather than the one she actually proposed; that the district court should be charged with knowledge of this based on her pretrial position; and that, had the district court rejected the instruction Mines meant to propose, the error in so doing would not have been harmless. Mines abandoned her pretrial position, however, by proposing the preponderance instruction during trial, thus waiving any claim that the court erred in giving the instruction she actually proposed.

4

The district court's judgment is AFFIRMED. Olsten's request for attorney's fees is DENIED. Mines's motion for leave to file supplemental excerpts of the record is DENIED as moot.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3