FILED

NOT FOR PUBLICATION

JUN 21 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTORINA MATA, No. 16-36015

Plaintiff-Appellant, D.C. No. 6:13-cv-00485-MC

v.

MEMORANDUM*

OREGON HEALTH AUTHORITY, an Agency of the State of Oregon;

CATHLEEN KAUFMANN; PATRICIA

WENTZ,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Argued and Submitted May 10, 2018 Portland, Oregon

Before: RAWLINSON and CHRISTEN, Circuit Judges, and BLOCK,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Plaintiff-Appellant Victorina Mata appeals a judgment entered after trial in

favor of Defendants-Appellees Oregon Health Authority (OHA), Cathleen

Kaufman, and Patricia Wentz. We have jurisdiction under 28 U.S.C. § 1291. We

affirm in part, reverse in part, and remand.

1. We reverse Jury Instruction No. 9 in part. The district court erred by

not instructing the jury that Mata’s reports to the Oregon Secretary of State and the

Oregon Bureau of Labor and Industries could support a retaliation claim under Or.

Rev. Stat. § 659A.230’s “civil proceeding” clause. We must predict how the

Oregon Supreme Court would resolve the discrepancy between Huber v. Or. Dep’t

of Educ., 230 P.3d 937 (Or. Ct. App. 2010), and Or. Admin. R. 839-010-0140. See

Westlands Water Dist. v. Amoco Chem. Co., 953 F.2d 1109, 1111 (9th Cir. 1991).

We are persuaded that contacting an administrative agency qualifies as “[b]ringing

a civil proceeding”—the interpretation that the Bureau of Labor and Industries

promulgated in Or. Admin. R. 839-010-0140. We need not decide whether the

statutory phrase “brought a civil proceeding” is an inexact term or a delegative

term, because we conclude the Oregon Supreme Court would endorse the Bureau’s

interpretation under either standard of review. See Bobadilla-German v. Bear

Creek Orchards, Inc., 641 F.3d 391, 398 (9th Cir. 2011).

2 Assuming the statutory phrase “brought a civil proceeding” is an inexact

term, the Bureau’s interpretation “is consistent with the legislature’s intent.”

Blachana v. Bureau of Labor & Indus., 318 P.3d 735, 746 (Or. 2014); see also

Springfield Educ. Ass’n v. Springfield Sch. Dist. No. 19, 621 P.2d 547, 554 (Or.

1980) (“[T]he test is general: whether a particular interpretation . . . is consistent

with or tends to advance a more generally expressed legislative policy.”). Oregon

courts have recognized that the “statutory protection provided by the whistleblower

statute advances the public policy of encouraging citizens to assist in the

enforcement of state and federal laws.” Jensen v. Medley, 11 P.3d 678, 688 (Or.

Ct. App. 2000), rev’d on other grounds, 82 P.3d 149 (Or. 2003).1 The Bureau’s

interpretation is consistent with the statute and advances legislative policy. Thus, it

“is a valid interpretation of an inexact term (as well as a delegative term, under the

less stringent standard).” Bear Creek, 641 F.3d at 398.

Huber does not acknowledge or analyze the Bureau’s interpretation. See

Huber, 230 P.3d at 942; see also Folz v. State ex rel. Or. Dep’t of Transp., 404

P.3d 1036, 1041 (Or. Ct. App. 2017) (noting the discrepancy between Huber and

the administrative rule). We conclude that: (1) the Huber court’s silence about the

1 Jensen involved former Or. Rev. Stat. § 659.550, which was renumbered as Or. Rev. Stat. § 659A.230 in 2001. See Jensen, 82 P.3d at 151. 3 rule; and (2) the rule’s consistency with the policy inherent in Or. Rev. Stat.

§ 659A.230 are “persuasive data” that the Oregon Supreme Court would not reach

the same result as Huber. Am. Tower Corp. v. City of San Diego, 763 F.3d 1035,

1047 (9th Cir. 2014).

Civil jury instructions are subject to harmless-error review, but we presume

prejudice when an instruction misstates the law. Clem v. Lomeli, 566 F.3d 1177,

1182 (9th Cir. 2009). Since OHA did not address prejudice in its answering brief,

it did not rebut that presumption. Id. Accordingly, we reverse Jury Instruction

No. 9 in part. We need not decide whether reports to administrative agencies are

separately protected under the statute’s “reported criminal activity” clause.

2. We also affirm Jury Instruction No. 9 in part. Mata has not shown

that the district court erred by instructing the jury that her termination was the only

independently actionable retaliation she faced. The jury instruction was a product

of the district court’s ruling on summary judgment that Mata’s “other alleged acts

of retaliation such as moving [her] desk or excluding her from meetings do not rise

to the level of adverse employment actions worthy of separate and additional

retaliation claims.” “Our review is limited to the record presented to the district

court at the time of summary judgment.” Lippi v. City Bank, 955 F.2d 599, 604

(9th Cir. 1992). On appeal, Mata cites exclusively to evidence and exhibits from

4 the trial record, so she has not shown that the district court erred at the summary

judgment stage.

3. The district court did not abuse its discretion by excluding Dr. Donald

Soeken from testifying on the grounds that his testimony would not have been

helpful to the trier of fact. For an expert’s testimony to help the trier of fact

understand the evidence, “the subject matter at issue must be beyond the common

knowledge of the average layman.” United States v. Finley, 301 F.3d 1000, 1007

(9th Cir. 2002). Soeken’s report did little more than vouch for Mata’s version of

events.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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