NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 6 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIANE HODGE, No. 21-16392

Plaintiff-Appellant, D.C. No. 3:18-cv-08066-SPL

v.

MEMORANDUM*

DENIS MCDONOUGH, Secretary of Veterans Affairs,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted September 12, 2023 Phoenix, Arizona

Before: GOULD, HURWITZ, and BUMATAY, Circuit Judges.

Diane Hodge appeals a district court judgment entered after an adverse jury

verdict on her Title VII claims. Hodge also challenges the district court’s denial of

her motion for new trial.

We review for plain error when a party does not object to a jury instruction

at trial. Fed. R. Civ. P. 51(d)(2). We review a denial of a new trial for abuse of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. discretion. See Fed. R. Civ. P. 59(a)(1)(A); Dees v. Cnty. of San Diego, 960 F.3d

1145, 1151 (9th Cir. 2020) (citation omitted). We have jurisdiction under 28

U.S.C. § 1291 and 42 U.S.C. § 2000e-5(j), and we affirm.

1. The district court did not plainly err in its hostile work environment

instruction. To show plain error, the appellant must demonstrate that: (1) an error

occurred, (2) it was obvious, (3) it affected the appellant’s substantial rights, and

(4) it “seriously affect[ed] the fairness, integrity or public reputation” of the

proceedings such that it created “a miscarriage of justice.” C.B. v. City of Sonora,

769 F.3d 1005, 1016–19 (9th Cir. 2014) (en banc) (citations omitted). Hodge

contended that she experienced employment discrimination based on race, religion,

and gender. Trial counsel proposed jointly stipulated jury instructions for Hodge’s

claims to disparate treatment, hostile work environment, and retaliation.

A. The instruction for hostile work environment stated that Hodge needed

to prove that she was “subjected to slurs, insults, jokes or other verbal

comments or physical contact or intimidation of a racial or religious

nature, and sexual advances, requests for sexual conduct, or other verbal

or physical conduct of a sexual nature.…” The district court and counsel

agreed that the parties did not offer any evidence relating to sexual

harassment. A hostile work environment claim for race or religion

clearly does not require a showing of sexual harassment. Nor is sexual

2 harassment an element of a gender-based hostile work environment

claim. See Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir.

2020). An instruction errs when it “adds an obviously non-existent

element to the plaintiff’s burden of proof.” Bearchild v. Cobban, 947

F.3d 1130, 1148 (9th Cir. 2020) (quoting Hoard v. Hartman, 904 F.3d

780, 790 (9th Cir. 2018)). The court erred by giving the instruction as

worded with the conjunctive “and” rather than the disjunctive “and/or.”

B. Nonetheless, to establish plain error, a plaintiff must show that the error

affected her substantial rights. See C.B., 769 F.3d at 1018. This requires

establishing “a reasonable probability that, but for the error, the outcome

of the proceeding would have been different.” United States v. Michell,

65 F.4th 411, 414 (9th Cir. 2023) (citation omitted). Given the record in

this case and the fact that the jury asked no questions about the

instructions, Hodge has not shown a reasonable probability that a

properly-worded instruction would have changed the verdict, particularly

because it was her burden to establish that any workplace hostility was

“severe and pervasive.” Christian, 984 F.3d at 809.

C. Hostile work environment claims have both subjective and objective

components. Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th

Cir. 2017); see also Ellison v. Brady, 924 F.2d 872, 878–79 (9th Cir.

3 1991). Factfinders must conduct the objective analysis from the

perspective of a member of the protected group. See Reynaga, 847 F.3d

at 687; Ellison, 924 F.2d at 879. The instruction in this case stated in

relevant part: “In order to establish a racially, sexually, and/or religiously

hostile work environment, the plaintiff must prove . . . a reasonable

woman in the plaintiff’s circumstances would consider the working

environment to be abusive or hostile.” The district court did not plainly

err in giving this instruction. Ellison requires a “reasonable woman”

standard for a sex-based claim, 924 F.2d at 879, and the instruction

accounts for Hodge’s other theories with its “in the plaintiff’s

circumstances” language.

2. The district court also did not plainly err in its retaliation instruction. The

court instructed the jury that Hodge had to show “the employer subjected the

plaintiff to an adverse employment action by temporarily reassigning plaintiff to a

claims assistant position and by demoting the plaintiff.” The use of the

conjunctive was incorrect because a Title VII plaintiff can allege multiple adverse

employment actions and need only prove one to prevail. See Ray v. Henderson,

217 F.3d 1234, 1243–44 (9th Cir. 2000). But Hodge failed to show a reasonable

probability that changing the “and” to an “or” would have led to a different

outcome. See Michell, 65 F.4th at 414.

4 3. Sometimes the collective effect of “several substantial errors” may be “so

prejudicial as to require reversal.” See Killian v. Poole, 282 F.3d 1204, 1211 (9th

Cir. 2002) (citations omitted). For the reasons above, even assuming instructional

error, we conclude that Hodge has not demonstrated a combined prejudice

necessitating reversal.

4. The authority to grant a new trial is confided “almost entirely” to the trial

court. See Dees, 960 F.3d at 1151 (citations omitted). The district court did not

abuse its discretion by denying Hodge’s motion for a new trial after concluding

that defense counsel engaged in no improper conduct that prevented Hodge from

fully and fairly presenting her case.

AFFIRMED.

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