NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSEMARY GARITY, No. 20-15588

Plaintiff-Appellant, D.C. No. 2:11-cv-01805-RFB-CWH v.

MEGAN J. BRENNAN, U.S Postmaster MEMORANDUM* General,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted April 23, 2021**

Before: GOODWIN, SILVERMAN, and BRESS, Circuit Judges. Concurrence by Judge BRESS

Rosemary Garity, proceeding pro se, appeals the district court’s judgment

and its order awarding back pay following a bench trial in Garity’s suit alleging

that the United States Postal Service, her former employer, discriminated against

* 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). her because of her disabilities and race in violation of the Rehabilitation Act of

1973, 29 U.S.C. § 701 et seq., and Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the district court’s conclusions of law and for clear error its findings of fact

and computation of damages. Ambassador Hotel Co., Ltd. v. Wei-Chuan Inv., 189

F.3d 1017, 1024 (9th Cir. 1999). We affirm.

Garity has not shown clear error in the district court’s computation of back

pay on her discrimination claim under the Rehabilitation Act. See Lentini v. Cal.

Ctr. for the Arts, Escondido, 370 F.3d 837, 850 (9th Cir. 2004) (following a bench

trial, “[w]e will not disturb an award of damages unless it is clearly unsupported by

the evidence, or it shocks the conscience” (citation and internal quotation marks

omitted)).

The district court properly denied Garity’s request for front pay because she

failed to show that she did not voluntarily withdraw from the workforce by

accepting disability retirement. See Caudle v. Bristow Optical Co., Inc., 224 F.3d

1014, 1020-21 (9th Cir. 2000) (front pay was not warranted where a plaintiff failed

to show that her withdrawal from the workforce was not voluntary).

The district court properly denied Garity’s request for punitive damages

because punitive damages are not recoverable in this action. See 42 U.S.C.

§§ 1981a(a)(2) & (b)(1) (setting out damages remedies for violations of Title VII

2 and the Rehabilitation Act and stating that punitive damages are not available

against a government agency).

The district court properly denied Garity’s request for attorney’s fees

because “[p]ro se plaintiffs . . . are not entitled to attorney’s fees.” Blanchard v.

Morton Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007).

Garity’s award of back pay renders moot her arguments on appeal

concerning her other claims, which seek back pay for the same time period. See

Jerron W., Inc. v. State of Cal., State Bd. of Equalization, 129 F.3d 1334, 1336 (9th

Cir. 1997) (“A controversy is moot if effective relief cannot be granted.”); see also

Gen. Tel. Co. of the Nw., Inc., v. Equal Emp. Opportunity Comm’n, 446 U.S. 318,

333 (1980) (“It . . . goes without saying that the courts can and should preclude

double recovery by an individual.”).

The district court’s exclusion of Garity’s emotional distress evidence as a

sanction for violating the Rule 35 order lacks support in the record. See Fed. R.

Civ. P. 35(a)(1) (“The court where the action is pending may order a party whose

mental or physical condition . . . is in controversy to submit to a physical or mental

examination[.]”); Fed. R. Civ. P. 37(b)(2)(A)(ii) (providing that if a party fails to

obey an order under Rule 35, the court may “prohibit[] the disobedient party from .

. . introducing designated matters in evidence”). The Rule 35 order required

defendant to disclose the names of the tests given in the Independent Medical

3 Examination but included no prohibition on preparing for them, and the record

contains minimal support for the district court’s finding that Garity was otherwise

aware that she should not prepare for them. However, any error was harmless

because the district court acted within its discretion in excluding the evidence on

the alternate ground that its probative value was substantially outweighed by the

danger of unfair prejudice and confusing the issues. See Fed. R. Evid. 403 (“The

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.”); Ollier v. Sweetwater Union High Sch. Dist.,

768 F.3d 843, 859 (9th Cir. 2014) (standard of review; explaining that a showing

of prejudice is required for reversal of evidentiary rulings, including discovery

sanctions).

The district court properly determined that a bench trial was warranted

because only equitable damages remained. See Lutz v. Glendale Union High Sch.,

403 F.3d 1061, 1067-69 (9th Cir. 2005) (holding that there is no right to a jury trial

on a claim for back pay under Title VII or the Rehabilitation Act).

AFFIRMED.

4

FILED

Garity v. Brennan, No. 20-15588 APR 27 2021

MOLLY C. DWYER, CLERK

BRESS, Circuit Judge, concurring: U.S. COURT OF APPEALS

I concur in the Court’s disposition, except for its determination that the

district court lacked a sufficient basis for excluding Garity’s emotional distress

evidence as a sanction for her violation of a Rule 35 Order. Because we correctly

conclude that any error in excluding the evidence on this ground was harmless, the

discussion of whether the district court erred is unnecessary.