Dena Palmer v. Pioneer Inn Associates, Ltd., a Limited Partnership

Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge GRABER.

OPINION

This employment discrimination case, brought by Dena Palmer against a prospective employer, Pioneer Inn Associates, Ltd., involves the intersection of evidentia-ry and ethical issues. It returns to us after the Nevada Supreme Court resolved our certified question regarding the scope of acceptable ex parte contacts between an attorney and an employee of a represented party. We take up three issues on appeal: (1) whether the district court erred in granting summary judgment for Pioneer with respect to two of Palmer’s three claims on the ground that she did not satisfy the test for prima facie discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); (2) whether, in light of the Nevada Supreme Court’s answer to our certified question, the district court erred in excluding an affidavit from one of Pioneer’s employees as a sanction for ex parte contact between Palmer’s attorney and the employee; and (3) whether the district court abused its discretion in *983 barring testimony at trial about the two dismissed claims. We reverse the…

concurring in part and dissenting in part:

I concur except with respect to the majority’s holding that Palmer is entitled to a new trial concerning the deli server position. As to that holding, I respectfully dissent.

The district court barred from use at trial Kapetanakis’ affidavit, which was prepared in connection with the summary judgment proceedings, and the portion of his deposition transcript referring to the affidavit. As we now know from the Nevada Supreme Court’s decision concerning our certified question, that ruling was erroneous because the ethical violation on which it was premised turned out not to be a violation. The district court plainly held, however, that Kapetanakis could testify in person at trial. As the court put it: “Precluding Kapetanakis from testifying at trial, though, would simply punish the Plaintiff for her attorney’s misconduct,” which the court was unwilling to do. Thus, the majority is simply wrong when it asserts “that the only useful testimony[Kapetanak-is] could provide was barred at trial” (slip op. at 10008) and when it refers to the absence of his live testimony as an “evi-dentiary exclusion” (id.). Assuming, as we must, that his live…

338 F.3d 981 Dena PALMER, Plaintiff-Appellant, v. PIONEER INN ASSOCIATES, LTD., A Limited Partnership, Defendant-Appellee. No. 00-15397. United States Court of Appeals, Ninth Circuit. Argued June 12, 2001. Submitted July 22, 2003 — San Francisco, California. Filed July 22, 2003. Ian E. Silverberg, Reno, NV, for the plaintiff-appellant. Miranda Du, McDonald Carano Wilson McCune Bergin Frankovich & Hicks, LLP, Reno, NV, for the defendant-appellee. Before: GOODWIN, GRABER, and McKEOWN, Circuit Judges. Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge GRABER. OPINION McKEOWN, Circuit Judge: 1 This employment discrimination case, brought by Dena Palmer against a prospective employer, Pioneer Inn Associates, Ltd., involves the intersection of evidentiary and ethical issues. It returns to us after the Nevada Supreme Court resolved our certified question regarding the scope of acceptable ex parte contacts between an attorney and an employee of a represented party. We take up three issues on appeal: (1) whether the district court erred in granting summary judgment for Pioneer with respect to two of Palmer's three claims on the ground that she did not…