Opinion
No. 05-15577. D.C. No. CV-02-00289-DGC.
Argued and Submitted February 14, 2007 San Francisco, California.
April 13, 2007.
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding.
Before: SCHROEDER, Chief Circuit Judge, NOONAN and GOULD, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Sharon Hodge, a former teacher and district administrator in the Mayer Unified School District, appeals the final order of judgment dismissing her case, entered after trial by jury on her gender discrimination claim against the Mayer Unified School District No. 43 Governing Board ("Board"). We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition.
Hodge was hired by the Board in November 1991 as a teacher. Hodge served five years as a middle school teacher, and another five years as a district administrator, which included service as the high school principal beginning July 1, 1999. In November 2000, Hodge claims she received a negative performance evaluation from James Nelson, superintendent of the Mayer Unified School District. On November 16, 2000, Hodge's doctor placed her on medical leave. Thereafter, Hodge and her husband, sued the Board, its members, the former district superintendent Don Cook, and his successor superintendent Nelson on February 14, 2002. On April 11, 2002, the Board voted to not renew Hodge's contract and she received a letter notifying her of their decision.
Hodge's amended complaint alleged six causes of action: (1) gender discrimination against all defendants under 42 U.S.C. § 2000e et seq., Title VII of the Civil Rights Acts of 1964 and 1991; (2) breach of contract against the Board; (3) breach of the implied covenant of good faith and fair dealing against the Board; (4) tortious interference with contractual relations against Nelson; (5) a due process property violation against Nelson under 42 U.S.C. § 1983; and (6) a due process liberty interest violation against Nelson under 42 U.S.C. § 1983.
The district court dismissed a portion of the Hodges' amended complaint pursuant to Fed.R. of Civ. P. 12(b)(6) on May 2, 2003. On August 17, 2004, the district court granted summary judgment on the remaining claims under counts two through six and on the claim for punitive damages. The sole remaining claim, count one's gender discrimination claim against the Board, was tried to a jury and unanimously decided in defendant's favor. The district court entered a final order dismissing Hodge's action on the merits and entering final judgment in favor of the defendants on March 2, 2005. This timely appeal followed.
Specifically, the district court dismissed count one's gender discrimination claim against all of the individual defendants and dismissed Mr. Hodge as a plaintiff with respect to the Title VII claim. The court also dismissed Hodge's claims for punitive damages on all counts except counts five and six under 42 U.S.C. § 1983.
Hodge first challenges the district court's exclusion of evidence of "other acts" of alleged sex discrimination by Nelson under Rules 404(b) and 403 from her trial. "The admission or exclusion of evidence under Fed.R.Evid. 403 or 404 is reversible only for a clear abuse of discretion." Davis v. Mason County, 927 F.2d 1473, 1484 (9th Cir. 1991) (citing Coursen v. A.H. Robins Co., 764 F.2d 1329, 1333, amended 773 F.2d 1049 (9th Cir. 1985)). Here, the district court cannot be said to have abused its discretion where it gave Hodge multiple opportunities to satisfy her burden of demonstrating the admissibility of other acts evidence under Fed.R. of Evid. 404(b), and she utterly failed to do so. Nor did the district court abuse its discretion when it further concluded that the proposed evidence was also inadmissible under Rule 403 due to the risks of inefficiency and confusion stemming from the potential need to conduct mini-trials with regard to each alleged other act of discrimination. See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. 2001) (district court enjoys "considerable discretion" in determining whether or not to exclude evidence under Rule 403). Accordingly, we reject Hodge's contention that the district court wrongly excluded alleged "other acts" evidence and we affirm the final judgment dismissing Hodge's sex discrimination claim.
Federal Rule of Evidence 404(b) governs the admissibility of "other act" evidence and provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Accordingly, evidence is admissible under Rule 404(b) if the following test is satisfied:
(1) there must be sufficient proof for the jury to find that the defendant committed the other act; (2) the other act must not be too remote in time; (3) the other act must be introduced to prove a material issue in the case; and (4) the other act must, in some cases, be similar to the offense charged.
Duran v. City of Maywood, 221 F.3d 1127, 1132-33 (9th Cir. 2000) (internal footnote omitted).
Hodge further argues that the district court erred in granting summary judgment with respect to counts two through six of her amended complaint because the district court failed to properly allocate the parties' burdens of proof on summary judgment and because there were genuine issues of material fact in dispute. We review a district court's grant of summary judgment de novo. See, e.g., Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000).
Hodge's claims for breach of contract and breach of the covenant of good faith and fair dealing against the Board in counts two and three which are based on events occurring before February 15, 2001, are barred by Arizona's one-year statute of limitations for claims against a public entity. See A.R.S. § 12-821. Hodge does not argue on appeal that these state law claims are not time-barred, and thus she has waived any such argument. See, e.g., Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 10 (9th Cir. 1999). Therefore, the only issue that remains with respect to counts two and three is whether a jury could have reasonably concluded that the Board either breached Hodge's contract or the covenant of good faith and fair dealing after February 15, 2001. Hodge alleged that the Board did in fact so breach by (1) discussing her employment in an executive session on April 11, 2002, rather than an open session, (2) discussing her employment without giving her twenty-four hours notice, and (3) deciding not to renew her contract. She contends that these actions constituted breaches because they were allegedly "discriminatory" and Hodge's contract incorporated certain non-discrimination policies of the Board. However, the district court correctly noted that Hodge's employment contract did not require discussion of her employment at open sessions or meetings about which she had received notice, nor did the contract require the Board to renew her employment for any duration. Because she did not produce any copies of any policies that were allegedly incorporated into her contract, the district court correctly concluded that Hodge had not sustained her burden of proof in opposition to a motion for summary judgment on these claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). Accordingly, the district court correctly concluded that no jury could reasonably conclude that the Board's conduct after February 15, 2001, breached either Hodge's contract or the covenant of good faith and fair dealing. We therefore affirm the grant of summary judgment with respect to the entirety of counts two and three.
The district court's grant of summary judgment with respect to count four was also appropriate. Hodge essentially argues in count four that Nelson's criticisms of her performance and his recommendation to the Board that her contract not be renewed, constituted tortious interference with her employment contract. The defendants moved for summary judgment on count four arguing that Nelson's conduct fell within the scope of his employment as Hodge's supervisor under Wallace v. Casa Grande Union High School Dist. No. 82, 184 Ariz. 419, 909 P.2d 486 (App. 1995). Thus, "[a]s superintendent, [Nelson] had the right and obligation to make recommendations to the District board regarding plaintiff and other District employees. In so doing, [Nelson] acted within the course and scope of his employment." Id. at 427. Based on the allegations in her amended complaint, Hodge argued that Nelson's conduct went beyond making recommendations to the Board and instead was "illegally discriminatory." The district court concluded that the proper inquiry on the tortious interference claim was whether there was evidence that Mr. Nelson acted improperly. Hodge offered no proof other than her allegations in the amended complaint that Nelson acted improperly or outside the scope of his supervisory authority; therefore, the district court correctly concluded that Hodge had not met her obligation in response to the motion for summary judgment to come forward with evidence that Nelson acted improperly. See Fed.R.Civ.P. 56(e).
The district court reached a similar conclusion with regards to Hodge's claims under § 1983 in counts five and six. On appeal, Hodge abandons the arguments she made below, and instead argues that the district court improperly narrowed the scope of her § 1983 claim, alleged in count five of the amended complaint, by failing to recognize that she was claiming denial of both equal protection and a property interest in continued employment. Hodge has waived this argument because she did not raise and preserve it below. See, e.g., USA Petroleum Co. v. Atlantic Richfield Co., 13 F.3d 1276 (9th Cir. 1994). Moreover, Hodge concedes the propriety of the district court's grant of summary judgment on count six by not raising the issue whatsoever on appeal, thus constituting waiver. See, e.g., Zukle, 66 F.3d at 1045 n. 10.
Accordingly, we hold that the district court did not abuse its discretion when it excluded evidence of alleged other acts of sex discrimination by Nelson pursuant to Fed.R.Evid. 404(b) and 403. Moreover, the district court's grant of summary judgment on Hodge's claims in counts two through six was proper.
AFFIRMED.