Olson

MEMORANDUM *

Randolph Olson appeals the denial of his Fed.R.Civ.P. 60(b) motion and the jury verdict for the United Parcel Service (UPS) on his claim for retaliation. He asserts that there were errors in the jury instructions and on evidentiary rulings. We affirm.

We review de novo Olson’s claim that the district court misstated the elements of his retaliation claim. See Ostad v. Oregon Health Sciences Univ., 327 F.3d 876 , 883 (9th Cir.2003). The district court properly instructed the jury that the decision maker must have knowledge of protected activity to find an employment act retaliatory. See, e.g., Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1197-98 (9th Cir.2003). The district court also properly instructed the jury that the “but for” element of retaliation was met if protected activity was “a motivating factor” for his termination. See Ninth Cir. Model Civ. Jury Inst. 12.3A and Comment.

We agree with Olson that the district court erred in charging the jury with the *276 shifting burdens relevant to pretext in a prima facie showing of retaliation. See Sanghvi v. City of Claremont, 328 F.3d 532, 540-41 (9th Cir.2003) (“The technical elements of the…