NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM FOX, No. 23-55639

Plaintiff-Appellant, D.C. No. 8:22-cv-00381-DOC-ADS v.

HARRY WINSTON, INC., MEMORANDUM*

Defendant-Appellee,

and

DOES 1 to 100, inclusive,

Defendant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted October 24, 2024** Pasadena, California

Before: IKUTA, R. NELSON, and BRESS, Circuit Judges.

Adam Fox claims his employer, Harry Winston, Inc., fired him for reporting

* 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). a missing IRS form to a supervisor. He sued under California’s whistleblower law.

See Cal. Lab. Code § 1102.5(b). But a jury found that Fox did not report the

missing form. Fox challenged that finding in a renewed motion for judgment as a

matter of law. The district court denied the motion, and Fox appeals. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

1. We review de novo the district court’s denial of a motion for

judgment as a matter of law. Johnson v. Paradise Valley Unified Sch. Dist., 251

F.3d 1222, 1226 (9th Cir. 2001). We review the jury’s verdict for substantial

evidence, drawing “all reasonable inferences” in the verdict’s favor and

“disregard[ing]” any evidence favorable to Fox that a jury could disbelieve. Id. at

1227 (quotations omitted).

Substantial evidence supports the verdict. First, Fox’s supervisor testified

that he did “not remember that [Fox] told [him] anything about any illegal

conduct.” Fox interprets this to mean that the supervisor did not recall their

conversation. But because the supervisor did not remember Fox disclosing the

missing form, the jury “could reasonably have inferred” that Fox never did. See id.

at 1228.

Second, Fox sent an email “to memorialize” his conversation with the

supervisor and to put into writing “all” the concerns that he had expressed. In the

email, Fox did not express concern about the missing form. Nor did Fox expressly

2 indicate that he had disclosed those concerns to his supervisor. So “even if it is

also possible” to infer that Fox disclosed the missing form to his supervisor, that is

not “the only conclusion that a reasonable jury could draw.” Harper v. City of Los

Angeles, 533 F.3d 1010, 1021, 1023 (9th Cir. 2008) (quotation omitted).

Third, during trial, Fox admitted that he perjured himself and acknowledged

several inconsistencies in his testimony. That gave the jury ample room “to

disbelieve, and therefore to disregard,” Fox’s account of the events. Johnson, 251

F.3d at 1227; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

151 (2000) (in considering motions for judgment as a matter of law, courts should

disregard impeached testimony).

Thus, substantial evidence allowed the jury to find that Fox never disclosed

the missing IRS form to his supervisor.

2. Fox claims the district court should have instructed the jury on an

alternative theory of liability: Harry Winston fired Fox because it believed he “may

disclose” the missing form. Fox did not object to the jury instructions below, so

we review this claim for plain error. Fed. R. Civ. P. 51(d)(2). Fox must show it

was obvious the court should have given the instruction, it is reasonably probable

that the omission affected the outcome of trial, and correcting the error is necessary

to prevent a miscarriage of justice. C.B. v. City of Sonora, 769 F.3d 1005, 1018

(9th Cir. 2014) (en banc); United States v. Marcus, 560 U.S. 258, 262 (2010).

3 “The fatal flaw” in Fox’s argument “is that he did not present [the alternative

theory] as a separate theory at trial.” Skidmore as Tr. for Randy Craig Wolfe Tr. v.

Led Zeppelin, 952 F.3d 1051, 1074 (9th Cir. 2020) (en banc). Fox never argued

that Harry Winston fired him because it believed he “may disclose” the form. To

the contrary, Fox confirmed that “the only reason” he thought Harry Winston fired

him “was because of the concerns that [he] raised with Mr. Ghalayini.” The

district court did not plainly err by failing to instruct the jury on a theory that Fox

never invoked. See id.

3. Finally, Fox argues that the district court plainly erred in failing

to instruct the jury that Harry Winston violated California’s whistleblower law if it

fired Fox for reporting the missing form, even if Fox were not the first employee to

do so. This argument fails because the jury found that Fox did not report the

missing form at all. Nor does Fox demonstrate that the jury instructions or the

special verdict form were legally erroneous.

AFFIRMED.

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