NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTOPHER SLAIGHT; SEYED AMIR No. 19-16806 MASOUDI; NOBEL MANDILI, D.C. No. 4:15-cv-01696-YGR Plaintiffs-Appellants, v. MEMORANDUM* TATA CONSULTANCY SERVICES, LTD., Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding Argued and Submitted November 19, 2020 San Francisco, California Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges. Memorandum joined by Chief Judge THOMAS and Judge Berzon; Dissent by Judge Schroeder In this employment discrimination class action, the plaintiffs-appellants Christopher Slaight, Seyed Amir Masoudi, and Nobel Mandili argue that the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court erred in instructing the jury and excluding certain evidence. We affirm the judgment in favor of the defendant Tata Consultancy Services (“TCS”) because any error was harmless. 1. The district court instructed the jury that “plaintiffs must prove by a preponderance of the evidence that TCS had: 1. a pattern or practice 2. of intentionally discriminating on the basis of race against non-South Asian employees or national origin against non-Indian employees 3. who were . . . then terminated.” The terms “pattern or practice,” “intentional,” “race,” and “national origin” were subsequently defined. The instructions also explained that “[s]tatistics alone can be sufficient to establish the element of pattern or practice” and that “[p]laintiffs do not assert claims based on citizenship or immigration status itself, but rather race and/or national origin.” A. According to plaintiffs, the district court should have either “omitted the term intent from the instruction altogether” or “combined the pattern or practice and intent instructions.” i. The plaintiffs’ first contention is incorrect because a disparate treatment claim requires proof of intentional discrimination. See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). In fact, plaintiffs’ preferred jury instructions proposed that “plaintiffs must prove a pattern or practice of intentional race and/or national origin discrimination.” (Emphasis added.) Thus, the inclusion 2 of the word “intentional” was not error. ii. The plaintiffs’ second contention is best understood as a claim about the formulation of the instructions. The plaintiffs’ argument is that “the court’s instruction ‘necessarily implies’ to the jury that statistics were not sufficient to satisfy the second element [of intentional discrimination].” (Emphasis added.) The plaintiffs preserved their objection, and the instruction could certainly have been more clear with regard to the use of statistics to prove intentional discrimination. But the formulation of the instruction was not sufficiently confusing or misleading to constitute an abuse of discretion. See Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th Cir. 1999), as amended on denial of reh’g (July 15, 1999); Gizoni v. Sw. Marine Inc., 56 F.3d 1138, 1142 n.5 (9th Cir. 1995). Based on the instructions, the jury could have found a “pattern or practice” solely based on the ...
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