Harrell

MEMORANDUM *

Matthew Harrell, an African-American bassoonist, brought discrimination and retaliation claims against the City and County of Honolulu and certain employees *511 (hereafter referred to collectively as “the City”) because he was not offered the position of bassoonist in the Royal Hawaiian Band (“the Band”). Harrell’s claims were tried to a jury, which returned a verdict in favor of the City.

On appeal Harrell seeks to challenge the district court’s disposition of several of the City’s motions in limine, the composition of the jury pool and jury, the denial of relief on his motion for a judgment as a matter of law, and the denial of his motion for a new trial. We determine that the district court did not abuse its discretion in ruling on the City’s motions in limine, that Harrell failed to preserve several of his objections to the jury and the trial, and that there was sufficient evidence to support the jury’s verdict.

Initially we observe that, as noted by the City, Harrell’s brief fails to comply with Federal Rule of Appellate Procedure 28 and Ninth Circuit Rules 28-2.5, 28-2.9 and 30-14. Most troublesome is the failure to support both the statement of facts and…

dissenting in part:

I respectfully dissent from that portion of the disposition concluding that the district court acted within its discretion when it denied Plaintiff Matthew Harrell’s motion for a new trial. Although I expressly *514 decline to join the extended discussion of Harrell’s challenges to the district court’s evidentiary rulings, denial of his requested motion for a mistrial and denial of his motion for judgment as a matter of law, I agree that the district court’s rulings on those issues should be affirmed.

However, I respectfully dissent from that portion of the disposition affirming the denial of Harrell’s motion for a new trial. In my view, the district court abused its discretion when it denied Harrell’s motion for a new trial because the record contains no evidence to support the jury’s verdict.

From my perspective, the fallacy in the conclusion that evidence in the record supports the jury’s verdict stems from a profound misapplication of the caselaw interpreting applicable discrimination statutes.

There is no dispute that the reason given by the decisionmaker for failing to select Harrell was his performance at the audition. However, that reason is clearly…