NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT CLEVELAND, an individual, No. 23-55108

Plaintiff-Appellant, D.C. No. 3:19-cv-00672-RBM-BGS v.

THE BEHEMOTH, a California corporation, MEMORANDUM*

Defendant-Appellee.

ROBERT CLEVELAND, an individual, No. 23-55462

Plaintiff-Appellant, D.C. No. 3:19-cv-00672-RBM-BGS v.

THE BEHEMOTH, a California corporation,

Defendant-Appellee,

and

DOES, 1 through 10,

Defendant.

Appeal from the United States District Court for the Southern District of California Ruth Bermudez Montenegro, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted April 8, 2024 San Diego Carter & Keep U.S. Courthouse

Before: WALLACE, McKEOWN, and OWENS, Circuit Judges.

Robert Cleveland appeals from a jury verdict in favor of his former

employer, The Behemoth, on various state- and federal-law claims related to

alleged workplace harassment and retaliation, including violation of Title VII of

the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act

(“FEHA”). Cleveland, in a consolidated case, also appeals from an order denying

his motion to retax costs. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm in part and vacate and remand in part.

Cleveland first raises a challenge to certain evidence admitted by the district

court as violative of Federal Rule of Evidence 412. We review this evidentiary

ruling for abuse of discretion. See Gauthier v. AMF, Inc., 788 F.2d 634, 635 (9th

Cir. 1986). The challenged evidence—Cleveland’s electronic communications

with his coworkers on The Behemoth’s internal messaging system and Cleveland’s

public social media posts—was offered to prove that Cleveland was not

subjectively offended by the alleged harassing conduct. The district court did not

abuse its discretion in concluding that this evidence was admitted for purposes

2 other than those circumscribed by Rule 412.1 Cf. Fed. R. Evid. 412(b)(2) (limiting

admissibility of evidence offered “to prove a victim’s sexual behavior or sexual

predisposition”).

Even if we were to credit Cleveland’s argument that the challenged evidence

falls within Rule 412’s purview, we conclude that any error was harmless. See

B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1103 (9th Cir. 2002) (“Evidentiary

rulings . . . should not be reversed absent some prejudice.” (quoting Defs. of

Wildlife v. Bernal, 204 F.3d 920, 927–28 (9th Cir. 2000))). Any failure to follow

Rule 412’s procedural requirements was harmless given Cleveland’s knowledge

and the district court’s pretrial awareness that The Behemoth intended to introduce

the challenged evidence. The evidence was highly probative of subjective offense,

an element of Cleveland’s state- and federal-law hostile work environment claims,

because it demonstrated Cleveland’s apparent comfort with discussing sexual

themes and using foul language and lewd humor in the workplace. See Dawson v.

Entek Int’l, 630 F.3d 928, 938 (9th Cir. 2011) (stating that, in a Title VII sex

hostile work environment action, “[a] plaintiff must establish that the conduct at

issue was both objectively and subjectively offensive”); Brooks v. City of San

Mateo, 229 F.3d 917, 923 & n.3 (9th Cir. 2000) (stating that “Title VII and FEHA

1 To the extent that the challenged evidence was arguably also relevant for an impermissible purpose under Rule 412, we note that Cleveland did not request a limiting instruction under Federal Rule of Evidence 105.

3 operate under the same guiding principles”). The potential dangers of

embarrassment and invasion of privacy were low, on the other hand, as Cleveland

apparently had no intention to hide his non-private comments. We therefore affirm

the district court’s evidentiary ruling.

Cleveland next challenges the propriety of the jury instructions on his Title

VII and California FEHA claims for sexual harassment and hostile work

environment. “We review a district court’s formulation of civil jury instructions

for an abuse of discretion, but we consider de novo whether the challenged

instruction correctly states the law.” Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th

Cir. 2014).

The instructions here, when considered as a whole, were “supported by the

evidence, fairly and adequately cover[ed] the issues presented, correctly state[d]

the law, and [were] not [] misleading.” Peralta v. Dillard, 744 F.3d 1076, 1082

(9th Cir. 2014) (en banc). The district court instructed jurors consistent with model

jury instructions of the Ninth Circuit and the Judicial Council of California. We do

not countenance Cleveland’s argument that the district court abused its discretion

in refusing to give a special instruction further explaining the meaning of sex-

based harassment. See Ragsdell v. S. Pac. Transp. Co., 688 F.2d 1281, 1282–83

(9th Cir. 1982) (per curiam) (“If the instructions given allow a jury to determine

intelligently the questions presented, a judgment will not be disturbed simply

4 because further amplification was refused.”). The instructions given nowhere

suggested that jurors were required to find that the alleged harassment was

motivated by Cleveland’s sex. See Boyde v. Brown, 404 F.3d 1159, 1173 (9th Cir.

2005) (“[W]e must presume that the jury followed its instructions to consider only

[] permissible inference[s] . . . .”). We therefore also affirm the district court on

this ground for appeal.

Finally, we consider the district court’s denial of Cleveland’s motion to retax

$49,860.91 in costs that were awarded in favor of The Behemoth.2 Federal Rule of

Civil Procedure 54(d)(1) “creates a presumption in favor of awarding costs to a

prevailing party, but vests in the district court discretion to refuse to award costs.”

Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000)

(en banc). “[A] district court need not give affirmative reasons for awarding costs;

instead, it need only find that the reasons for denying costs are not sufficiently

persuasive to overcome the presumption in favor of an award.” Save Our Valley v.

Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). In a civil rights case, a district

court abuses its discretion where it denies a motion to retax costs without

considering the losing plaintiff’s “limited financial resources.” Ass’n of Mexican-

Am. Educators, 231 F.3d at 592 (citing Stanley v. Univ. S. Cal., 178 F.3d 1069,

2 We grant Cleveland’s motions to take judicial notice of materials relevant to the denial of his motion to retax costs, at Dkt. Nos. 15, 42 in Case No. 23-55108 and, at Dkt. No. 30 in Case No. 23-55462. See Fed. R. Evid. 201(b)(2).

5 1079–80 (9th Cir. 1999)); see also Escriba v. Foster Poultry Farms, Inc., 743 F.3d

1236, 1248 (9th Cir. 2014) (“Costs are properly denied when a plaintiff ‘would be

rendered indigent should she be forced to pay’ the amount assessed.” (quoting

Stanley, 178 F.3d at 1080)).

Cleveland presented evidence of his limited financial resources via two

declarations: the first declaration, dated March 1, 2023, accompanied his original

motion to retax costs, and the second declaration, dated March 27, 2023,

accompanied his reply to The Behemoth’s opposition to his motion. In the first

declaration, Cleveland stated, under penalty of perjury, that he: “earn[s] $31.00 an

hour and ha[s] no assets”; “ha[s] no college degree and live[s] in a two-bedroom

apartment with [his] baby and partner”; and “ha[s] no savings or investments.” In

the second declaration, Cleveland, again under penalty of perjury: reiterated that he

“ha[s] no savings or investments”; clarified that he “earned $43,301.05 in net

wages in 2022”; and added “[t]he total dollar amount in my checking account is

$1,293.80” and that he does “not own a car” or “own any real estate.”

In concluding that Cleveland’s limited financial resources were not a

sufficiently persuasive reason to overcome the presumption of awarding costs to

The Behemoth, the district court cited only some of the information offered by

Cleveland. Specifically, the district court drew from Cleveland’s March 1, 2023

declaration, but did not acknowledge additional relevant facts from his March 27,

6 2023 declaration.3 Relying on The Behemoth’s opposition, the district court

inaccurately estimated Cleveland’s annual income as $64,480, a figure more than

$20,000 greater than his actual net income per the second declaration.

Additionally, the district court focused on Cleveland’s failure “to provide

sufficient documentation of financial hardship” because his declaration was

“limited in substance.” The district court seemed to suggest that additional

evidence, such as statements of assets and income and a schedule of expenses, was

required to demonstrate indigency. We have never imposed such a requirement,

nor need we do so here. As described above, the district court erred by not

considering the second declaration Cleveland submitted regarding his financial

condition when such information provided fuller context for facts The Behemoth

offered in its opposition. Cf. S.E.C. v. Platforms Wireless Int’l Corp., 617 F.3d

1072, 1087 n.9 (9th Cir. 2010) (“We reject defendants’ claim that the district court

erred by considering new evidence . . . submitted with the [plaintiff’s] reply brief”

when the new evidence directly responded to evidence in the opposition brief).

Had the district court considered the second declaration, the court may have

determined that Cleveland had met his burden to show why he should not be

required to pay some or all of The Behemoth’s costs, especially when those costs

3 Indeed, the district court referred to “Plaintiff’s declaration” in the singular, underscoring that the district court did not consider the second declaration.

7 significantly exceeded his net wages in 2022 and amounted to more than 38 times

the balance in his checking account.4 Under these circumstances, we cannot say

that the district court properly “consider[ed] the financial resources of the plaintiff

and the amount of costs in [this] civil rights case[].” Stanley, 178 F.3d at 1079.

We vacate the denial of Cleveland’s motion to retax costs, and remand for

the district court to evaluate whether Cleveland’s financial resources are so limited

and the financial disparity between the parties so significant as to rebut the

presumption in favor of taxing costs against him, or at a minimum, subject to

adjustment. The district court may, at its discretion, further develop the record as

necessary.

AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.

Each party shall bear its own costs on appeal.

4 We cautioned against taxing costs against a losing civil rights plaintiff where “the costs . . . exceed[ed] her average annual earnings.” Escriba, 743 F.3d at 1248.

8