Ostad

Opinion by Circuit Judge BETTY B. FLETCHER. Opinion concurring in part, and dissenting in part by Circuit Judge O’SCANNLAIN.

Appellants Oregon Health Sciences University (OHSU) and Dr. Aan Seyfer ap *879 peal following a jury award of both compensatory and punitive damages in favor of Dr. David Ostad. We affirm.

Ostad, a former OHSU resident who worked under Seyfer, alleged that his termination from the residency program was motivated by Seyfer’s retaliation against him for questioning Seyfer’s billing practices. Appellants challenge, among other things, the district court’s denial of their motion for judgment in their favor as a matter of law. They contend that the trial judge misapprehended the law applicable to mixed-motive First Amendment employment claims. We affirm the district court’s determination that entry of judgment as a matter of law would be improper, as well as its formulation of jury instructions. We also affirm the district court’s decision to admit certain testimony of Dr. Wheatley, one of Seyfer’s colleagues.

I. Factual Background & Procedural History

Ostad began a residency in the Plastic and Reconstructive Surgery Division of Oregon Health Sciences…

concurring in part and dissenting in part:

I agree that the district court did not err in denying the motion for judgment as a matter of law (and that OHSU has waived any right to have its liability considered separate from that of Seyfer’s). Furthermore, I agree that the district court did not abuse its discretion in any of the contested evidentiary rulings. Accordingly, I concur in Parts I, II-A, II-B.2, and II-C of the opinion. However, because I would hold that Seyfer and OHSU are entitled to a new trial on the basis of an improper jury instruction, I must dissent from Part II-B.l.

“Under the dual motive test, a plaintiff must show that her protected activities were a ‘substantial factor’ in the complained of adverse employment action. Protected activities are a ‘substantial factor’ where the adverse actions would not have been taken ‘but for’ the protected activities.” Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir.1996). Our decision in Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir.1999), reaches a similar conclusion: “[A] subordinate cannot use the nonretaliatory motive of a superior as a shield against liability if that superior never would have…