NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER SLAIGHT; SEYED AMIR No. 19-16806

MASOUDI; NOBEL MANDILI,

D.C. No. 4:15-cv-01696-YGR Plaintiffs-Appellants,

v. MEMORANDUM*

TATA CONSULTANCY SERVICES,

LTD.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted November 19, 2020 San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges.

Memorandum joined by Chief Judge THOMAS and Judge Berzon; Dissent by Judge Schroeder

In this employment discrimination class action, the plaintiffs-appellants

Christopher Slaight, Seyed Amir Masoudi, and Nobel Mandili argue that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court erred in instructing the jury and excluding certain evidence. We

affirm the judgment in favor of the defendant Tata Consultancy Services (“TCS”)

because any error was harmless.

1. The district court instructed the jury that “plaintiffs must prove by a

preponderance of the evidence that TCS had: 1. a pattern or practice 2. of

intentionally discriminating on the basis of race against non-South Asian

employees or national origin against non-Indian employees 3. who were . . . then

terminated.” The terms “pattern or practice,” “intentional,” “race,” and “national

origin” were subsequently defined. The instructions also explained that “[s]tatistics

alone can be sufficient to establish the element of pattern or practice” and that

“[p]laintiffs do not assert claims based on citizenship or immigration status itself,

but rather race and/or national origin.”

A. According to plaintiffs, the district court should have either “omitted the

term intent from the instruction altogether” or “combined the pattern or practice

and intent instructions.”

i. The plaintiffs’ first contention is incorrect because a disparate treatment

claim requires proof of intentional discrimination. See, e.g., Int’l Bhd. of Teamsters

v. United States, 431 U.S. 324, 335 n.15 (1977). In fact, plaintiffs’ preferred jury

instructions proposed that “plaintiffs must prove a pattern or practice of intentional

race and/or national origin discrimination.” (Emphasis added.) Thus, the inclusion

2 of the word “intentional” was not error.

ii. The plaintiffs’ second contention is best understood as a claim about the

formulation of the instructions. The plaintiffs’ argument is that “the court’s

instruction ‘necessarily implies’ to the jury that statistics were not sufficient to

satisfy the second element [of intentional discrimination].” (Emphasis added.) The

plaintiffs preserved their objection, and the instruction could certainly have been

more clear with regard to the use of statistics to prove intentional discrimination.

But the formulation of the instruction was not sufficiently confusing or misleading

to constitute an abuse of discretion. See Gilbrook v. City of Westminster, 177 F.3d

839, 860 (9th Cir. 1999), as amended on denial of reh’g (July 15, 1999); Gizoni v.

Sw. Marine Inc., 56 F.3d 1138, 1142 n.5 (9th Cir. 1995). Based on the instructions,

the jury could have found a “pattern or practice” solely based on the statistical

evidence. And the only pattern or practice at issue was one of intentional

discrimination, which, according to the instructions, meant “conduct that is

purposeful.” It would have been error for instructions to state that statistics alone

could not be sufficient to satisfy the plaintiffs’ burden as to intentional

discrimination, see Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08

(1977), but the instructions did not so state.

Further, even if the instruction were sub-optimal, “it is more probable than

not that [any] error was harmless.” Jenkins v. Union Pac. R.R. Co., 22 F.3d 206,

3 210 (9th Cir. 1994). The plaintiffs spent much of their closing argument discussing

the “leadership directive” as a basis for establishing a pattern or practice of

intentional discrimination. When the plaintiffs did discuss statistics in their closing

argument, they emphasized that “[s]tatistics in discrimination cases are incredibly

important” and that the jury must consider whether “the outcomes you are seeing

in terminations is as a result of chance as opposed to, for example, a pattern or

practice of discrimination.” (Emphasis added.) Further, while TCS did emphasize

in closing that plaintiffs had not met their burden to demonstrate intentional

discrimination, including arguing that plaintiffs’ statistical expert did not opine on

whether TCS intentionally discriminated, TCS did not argue that statistics alone

could never suffice to meet the plaintiffs’ burden. Instead, TCS emphasized

asserted deficiencies in the plaintiffs’ statistics as well as the company’s own

affirmative practice to invest in the training and retention of local employees to fill

its many open positions.

B. The plaintiffs also argue that the district court erred in instructing the jury

about the distinction between race or national origin discrimination and citizenship

discrimination. According to the plaintiffs, the jury was “left to believe that

citizenship discrimination and race or national origin discrimination are mutually

exclusive concepts.” (Emphasis added.) The plaintiffs preserved their objection,

but the citizenship instruction is a correct statement of their claims, which do not

4 concern “citizenship or immigration status itself.” As the instruction did not

misinform the jury about whether citizenship discrimination could indicate race or

national origin discrimination, the formulation of the instruction was not an abuse

of discretion.

2. The district court granted the defendant’s motion in limine to exclude

specific exhibits in part “as to evidence of discrimination in hiring.” The district

court did not specify the reason for the exclusion of evidence.

The emails likely were relevant, because they tended to show racial and

national origin discrimination in filling positions that could otherwise have been

filled by members of the plaintiff class, thereby avoiding termination for those

class members. See Fed. R. Evid. 401; Fed. R. Evid. 402. But any error in

excluding the evidence was harmless. Plaintiffs’ burden was to establish a pattern

or practice of discrimination. As the jury instructions explained, “[a] ‘pattern of

practice’ means a standard operating procedure.” The excluded exhibits reflected a

few comments by particular individuals who were not company executives. The

few excluded emails stand in stark contrast to the extensive evidence concerning

the “leadership directive,” which plaintiffs repeatedly alleged reflected a

company-wide policy to discriminate against the plaintiff class by preferring the

placement of Indian and South Asian employees over the placement of class

members. The few excluded emails were thus somewhat cumulative and did not

5 themselves illustrate a widespread policy of racial or national origin discrimination

at the company. They would not have persuaded a jury not persuaded by the

leadership directive that the defendant was engaged in a broad scale pattern or

practice of intentional discrimination.

AFFIRMED.

6

FILED

JAN 8 2021

Christopher Slaight v. Tata Consultancy Services, No. 19-16806

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Schroeder, Circuit Judge, dissenting:

The jury instructions were incorrect, and the error, in my view, could not

have been harmless. The jury was told the plaintiffs had to prove (1) a pattern or

practice (2) of intentionally discriminating. The instructions thus told the jury the

plaintiffs had to prove that each and every employment decision adverse to a

person of plaintiffs’ race or national origin was an act of intentional discrimination.

Reinforcing the notion that intent is separate from pattern and practice, the

instructions said plaintiffs had to prove “each element referenced,” and said

“statistics alone can be sufficient to establish the element of a pattern and practice,”

thereby leaving the element of intent to be proved some other way.

Such independent proof of intent, however, was unnecessary once the

plaintiffs proved a pattern and practice of discrimination. The pattern and practice

of choosing members of one group over the other, which can be shown through

statistics alone, can supply the element of intent. Int’l Bhd. of Teamsters v. United

States, 431 U.S. 324 (1977). Just as statistics may establish a prima facie case of

racial discrimination in jury selection, “statistics are equally competent in proving

employment discrimination.” Id. at 339.

The jury could not have easily overlooked this error in the instructions. The defendant argued it to the jury several times in closing. The majority concludes

any error was harmless, and I therefore respectfully dissent.