FILED

NOT FOR PUBLICATION

MAY 18 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD MORGAN, No. 21-15979

Plaintiff-Appellant, D.C. No. 2:16-cv-04036-DLR

v.

MEMORANDUM*

PETE BUTTIGIEG, Secretary, U.S. Department of Transportation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted April 14, 2022 San Francisco, California

Before: CLIFTON and M. SMITH, Circuit Judges, and REISS,** District Judge.

Gerald Morgan, a former electronics technician for the Federal Aviation

Administration, appeals from the district court’s judgment following a jury verdict

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. in favor of the Government in this Title VII retaliation action. We have jurisdiction

under 28 U.S.C. § 1291. We review the district court’s evidentiary rulings and

rulings on motions in limine for abuse of discretion. Branch Banking & Tr. Co. v.

D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017); Roberts v. Coll. of the Desert,

870 F.2d 1411, 1418 (9th Cir. 1988). We affirm.

Morgan sued the Government alleging unlawful Title VII retaliation. His

theory leading up to trial was that the Government reassigned him to a less

desirable position after he told his supervisor that he was considering filing an

Equal Employment Opportunity (“EEO”) complaint based on what he perceived to

be a racially discriminatory comment made to him by a coworker, “is that how you

want to play it?” Before trial, the Government filed a motion in limine (“MIL”)

seeking to preclude Morgan from arguing that his statement to his supervisor was

protected activity for purposes of establishing a prima facie retaliation claim.

Morgan responded that the statement was protected “opposition” to unlawful Title

VII discrimination. The district court granted the MIL, concluding that Morgan’s

belief that his coworker’s comment was racially discriminatory was objectively

unreasonable. Morgan was therefore precluded from arguing at trial that any

protected activity occurred before September 24, 2012, the date the parties agree he

2 made EEO contact. Following a three-day trial, the jury entered a verdict in favor

of the Government.

1. Morgan contends that he should have been able to argue to the jury

that he engaged in a protected activity before September 24, 2012, by opposing his

coworker’s discriminatory comment. A plaintiff can establish that an employer

violated Title VII’s anti-retaliation provisions through either the (1) the

“opposition” clause, if the adverse employment action occurs because of the

employee’s opposition to an unlawful employment practice, or (2) the

“participation” clause, if it is in retaliation for the employee’s participation in Title

VII's enforcement mechanisms. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir.

1997). Where, as here, a plaintiff claims he engaged in protected opposition, the

plaintiff must demonstrate “a reasonable belief that the employer has engaged in an

unlawful employment practice.” Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006)

(quoting Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994)).

The district court did not abuse its discretion in granting the Government’s

MIL. It is true that Title VII protects an employee’s opposition to perceived

unlawful employment practices, and that the practices need not actually be

3 unlawful.1 Freitag, 468 F.3d at 542. But the employee must have a “reasonable

belief that the employer has engaged in an unlawful employment practice.” Id. at

541 (quoting Moyo, 40 F.3d at 984). The district court here was well within its

discretion to conclude that Morgan could not reasonably and in good faith have

believed that his coworker’s isolated comment was discriminatory, let alone an

unlawful employment practice under Title VII.

2. Morgan next argues that the district court improperly admitted a set of

vehicle mileage reports under the business record exception, Fed. R. Evid. 803(6),

to the hearsay rule. There is no merit in this argument. The vehicle mileage reports

were prepared by Morgan’s supervisor near the time of the transaction in the

ordinary course of business, and the circumstances do not indicate a lack of

trustworthiness. See United States v. Scholl, 166 F.3d 964, 978 (9th Cir. 1999). The

1 From the outset, the parties and the district court have analyzed Morgan’s statement to his supervisor under the opposition clause. For the first time in his reply brief, Morgan suggested that his stated intent to invoke the EEO process qualifies as a protected activity under both the opposition and the participation clause. We decline to address whether Morgan’s statement to his supervisor qualifies as protected “participation” because that argument was not made to the district court or in the opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate court will not consider issues not properly raised before the district court. Furthermore, on appeal, arguments not raised by a party in its opening brief are deemed waived.”). In any event, we are not persuaded that an employee’s vague statement that he is “considering filing an EEO complaint,” absent other facts, is enough in itself to establish protected participation. 4 district court has “wide discretion” in deciding whether evidence satisfies Rule

803(6)’s “trustworthiness standard,” and it did not exceed that discretion here. Id.;

see La Porte v. United States, 300 F.2d 878, 880 (9th Cir. 1962).

Morgan’s primary argument that the reports contain inaccuracies,“go[es] to

the weight and not the admissibility of the evidence.” Scholl, 166 F.3d at 978

(quoting United States v. Keplinger, 776 F.2d 678, 694 (7th Cir. 1985)). He also

raises a second argument not raised at trial—that an added column in the reports

was created in anticipation of litigation. Morgan did not preserve this argument

below, and the Court will not “review an issue not raised or objected to below

except to prevent a manifest injustice.” United States v. Archdale, 229 F.3d 861 (9th

Cir. 2000). Morgan’s argument is without support in the record, and we see no such

injustice here.

3. Morgan’s final argument is that the district court improperly allowed

the Government to introduce a set of calendars even though the versions introduced

at trial did not match the ones provided to Morgan in pretrial discovery. The district

court did not abuse its discretion here either. The only alterations to the calendars

presented at trial removed references to a car accident and worker’s compensation

claim, evidence of which had been properly excluded pursuant to a pretrial MIL.

Besides, the record suggests that even if Morgan was not provided a copy of the

5 redacted calendars before trial, he was made aware of the changes to the exhibit

well in advance. The district court did not abuse its discretion.

4. Finally, although Morgan has not expressly argued that the verdict is

unsupported by substantial evidence, he asks the panel to reverse the judgment and

remand for a new trial. We must uphold the jury’s verdict if it is supported by

substantial evidence—that is, evidence adequate to support the jury’s conclusion.

Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008); Pavao v.

Pagay, 307 F.3d 915, 918 (9th Cir. 2002). The jury’s verdict here was based solely

on its conclusion that Morgan failed to prove he was subjected to an adverse

employment action. Absent any argument from Morgan that the jury’s conclusion is

unsupported by substantial evidence, we see no basis for overturning the verdict.

AFFIRMED.

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