Richard C. Busse and Scott N. Hunt, Busse & Hunt, Portland, Oregon, for the plaintiff-appellant.

Calvin L. Keith and Jay P. Nusbaum, Perkins Coie, Portland, Oregon and Jeffrey D. Neumeyer, Boise Cascade Corporation, Boise, Idaho, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; John A. Jelderks, Magistrate Judge, Presiding. D.C. No. CV96-00656-JJ.

Before: William C. Canby, Jr. and Thomas G. Nelson, Circuit Judges, and Jeremy Fogel, District Judge.1

Susan Beachy ("Beachy") appeals a judgment in favor of her former employer, Boise Cascade Corporation ("Boise"), with respect to Beachy's claims of discrimination and wrongful discharge. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm the judgment.

Beachy began working for Boise as a log accountant in 1980, keeping records of the company's deliveries of different types of logs to various destinations. On September7, 1993, she was involved in an automobile accident, after which she suffered pain in her neck, shoulders and upper back, vision problems, severe headaches and sporadic numbness throughout her face and arm. She saw chiropractors, an orthopedic surgeon and a neurologist for treatment and occasionally missed work because of medical appointments.

Beginning in January 1994, Beachy began receiving reprimands regarding poor attitude and poor performance. These reprimands came from a number of persons: D. Bridges, who acted as Beachy's immediate supervisor from January 1994 through February 1994; Lana Tuss, who replaced Bridges as Beachy's immediate supervisor in March 1994; DeAnna Mandich, the accounting supervisor; and Dick Hill, the regional controller. Beachy received an unfavorable annual performance review on March 10, 1994 and was terminated on July 1, 1994.

Beachy subsequently filed suit against Boise, asserting inter alia that her termination was motivated by disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. S 12101 et seq. and Oregon Revised Statutes S 659.425. The case was tried before an eight-person jury, which returned a verdict for Boise.2 Magistrate Judge Jelderks, who presided over the trial, entered judgment in favor of Boise on March 12, 1998.

Beachy contends that she was denied a fair trial as a result of three trial court errors. First, she contends that Judge Jelderks erred in failing to give a complete instruction on perceived disability discrimination. Second, she contends that Judge Jelderks improperly excluded testimony by Boise employees who claimed to have encountered intolerance to medical problems while at Boise. Finally, she contends that Judge Jelderks erred in admitting into evidence a Notice of Dismissal and Dismissal Memo issued by the Oregon Bureau of Labor and Industries ("BOLI")3 and in failing to give a limiting instruction regarding these documents.

We review de novo whether a jury instruction misstated the law and review for abuse of discretion the formulation of the instruction. See Fireman's Fund Insurance v. Alaskan Pride Partnership, 106 F.3d 1465, 1469 (9th Cir. 1997). We review evidentiary rulings for abuse of discretion. See Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995).

I. Jury Instruction Regarding Perceived Disability

At trial, Beachy claimed that Boise discriminated against her on the basis of a perceived disability. Under both the ADA and Oregon law, an employer may be liable for discriminating against an employee based upon a perceived disability if: (1) the employee has a physical or mental impairment that does not substantially limit major life activities but the employee is treated by the employer as having a substantially limiting impairment; (2) the employee has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) the employee has no impairment but is treated by the employer as having a substantially limiting impairment. See 42 U.S.C. S 12102(2)(c); ORS 659.400(2)(c);4 29 C.F.R. 1630.2(l).

Judge Jelderks instructed the jury regarding the first two prongs of this test, informing them that:

An individual is perceived as having a disability if the individual has a physical impairment that does not substantially limit work activities by but is treated by an employer or supervisor as having such a limitation or has a physical impairment that substantially limits major life activities only as a result of the attitude of others toward such an impairment.

However, Judge Jelderks refused to instruct the jury regarding the third prong, addressing perceived disability when the employee suffers no impairment. Beachy argues that Judge Jelderks' instruction as given misstated the law and that he erred by refusing to instruct the jury regarding the third prong.

Judge Jelderks' instruction accurately stated the law with respect to the two prongs it addressed. The question is whether Judge Jelderks' formulation of the instruction, which excluded the third prong of the test, constituted an abuse of discretion.

The record makes clear that Judge Jelderks' decision to exclude the third prong from the jury instruction was based upon his conclusion that it would be inappropriate to instruct on perceived disability in the absence of any impairment when "the unrefuted evidence from the plaintiff herself was that she does have some physical -or at the time did have some physical impairment." The evidence at trial demonstrated that Beachy suffered from multiple impairments, including pain in her neck, back and shoulders, vision problems, severe headaches and numbness through her face and arm. A party is not entitled to a jury instruction which is unsupported by the evidence. See Fikes v. Cleghorne, 47 F.3d 1011, 1014 (9th Cir. 1995). Accordingly, Beachy was not entitled to an instruction on the third prong of the test, addressing perceived disability when the employee has no impairment.5

Beachy attempted to call as witnesses other Boise employees who claimed to have encountered intolerance to medical problems while at Boise. Boise moved in limine to exclude the testimony of these witnesses on the grounds that the testimony was irrelevant and prejudicial. During the hearing on the motion, Judge Jelderks concluded that the proffered testimony might be admissible if it showed a trend of illegal, discriminatory conduct, but that it would not be admissible if it showed only that Boise was "hard-nosed and didn't tend to humanize their employees much." Judge Jelderks concluded that in the latter case the testimony would not be particularly probative and might unduly prejudice the jury.

One of Beachy's proposed witnesses offered to testify that a supervisor treatedher harshly for taking time off due to a family illness. Another witness offered to testify that she was reprimanded for having excessive pregnancy-related medical appointments and for making excessive telephone calls related to her baby's medical situation. A third witness was prepared to testify that she experienced "differential treatment" regarding her need for medical appointments. A fourth witness offered to testify that she was "harassed" for having bronchitis and walking pneumonia and was fired after missing two days of work following a miscarriage.

Boise argued, and Judge Jelderks apparently agreed, that it was unclear whether the complained-of conduct was a violation of law at the time it occurred. Judge Jelderks asked Beachy for an expanded witness statement from one of the witnesses. It does not appear that an expanded witness statement was provided. Judge Jelderks ultimately concluded that Beachy had failed to establish that Boise's treatment of the proposed witnesses violated any law and therefore that the probative value to be gained from the testimony was outweighed by the potential for prejudice.

Beachy does not dispute Judge Jelderks' conclusion that the proffered testimony failed to establish prior illegal conduct by Boise. However, Beachy asserts that she was entitled to introduce evidence of Boise's intolerance to medical problems even if prior examples of intolerance did not rise to a violation of law. In support of this assertion she cites Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995), a case in which the trial court precluded a female employee claiming quid pro quo sexual harassment by a supervisor from introducing testimony by other female employees regarding their own sexual harassment by the same supervisor. On appeal, we held that "an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group." Heyne, 69 F.3d at 1479. Beachy argues that this rule is applicable to her case, and that she should be allowed to introduce evidence that Boise was hostile toward persons with medical problems.

Beachy's argument might be persuasive if the evidence in question indicated that Boise was hostile toward a well defined and protected group such as persons of a particular race, persons of a particular gender, or persons who are disabled. If that were the case, prior incidents of intolerance might be probative of general hostility even if such incidents did not rise to the level of a statutory violation. However, the proffered testimony in this case indicates that, at most, Boise did not like its employees to miss work for medical appointments or family illness. Even assuming that the proffered testimony demonstrated that Boise had a discriminatory animus toward "employees with medical problems," as opposed to a dislike for employees missing work, there do not appear to be any reported cases extending the rule articulated in Heyne to such an amorphous group. All the reported cases in which evidence of other incidents was allowed involved evidence related to a group defined by clearly established parameters such as gender, see, e.g., Hurley v. Atlantic City Police Department, 174 F.3d 95, 110-11 (3d Cir. 1999), or race, see, e.g., Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1104 (8th Cir. 1988). It cannot be said that Judge Jelderks abused his discretion in declining to extend these holdings to allow testimony regarding hostility toward a group which is not clearly defined and not clearly protected under the law, particularly when he had concluded that admission of the testimony would be prejudicial.

Beachy sought to exclude from evidence the BOLI's Notice of Dismissal informing her that the BOLI would not proceed with her case because it "did not find sufficient evidence to continue [its] investigation." Beachy also sought to exclude the BOLI's Dismissal Memo detailing the BOLI's investigation of her claim. Beachyargued that admission of these documents would confuse the issues and would create a danger that the jury would substitute the agency's judgment for its own judgment. Beachy argued that under these circumstances the documents should be excluded pursuant to Federal Rule of Evidence 403, because the probative value of the documents was outweighed by the potentially prejudicial effect. Judge Jelderks admitted the documents over Beachy's objection.

Beachy argues that admission of the documents was erroneous on two grounds. First, she argues that admission of the documents was prejudicial because the documents could have confused the jury and led it substitute the BOLI's judgment for its own. In addition, she argues that admission of the Dismissal Memo was erroneous because it contained summaries of witness statements which constituted hearsay.6

With respect to Beachy's first argument, we conclude that it is unclear from the record whether Judge Jelderks considered the prejudicial effect the BOLI documents might have on the jury. Boise argued that the BOLI documents were admissible under Plummer v. Western International Hotels Co., Inc., 656 F.2d 502 (9th Cir. 1981) and Heyne , 69 F.3d 1475, in which we held that it is reversible error for a district court to exclude an agency's determination of probable cause. Judge Jelderks subsequently found the BOLI documents to be admissible, characterizing the documents as a "probable cause finding." Accordingly, it appears that Judge Jelderks may have felt compelled to admit the documents pursuant to Plummer and Heyne and may not have weighed independently the documents' probative value and potential for prejudice.

We now hold that an agency's determination that insufficient facts exist to continue an investigation is not per se admissible in the same manner as an agency's determination of probable cause. Whereas the latter type of determination indicates only that there is probable cause to believe a violation has occurred, the former type of determination in effect constitutes a finding of no probable cause and terminates the agency's inquiry. In this sense, a determination of insufficient facts is a final ruling by the agency. There is a much greater risk of unfair prejudice involved in introducing a final agency ruling as opposed to a probable cause determination, because a jury might find it difficult to evaluate independently evidence of discrimination after being informed of the investigating agency's final results. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986). Accordingly, we have held that a district court asked to admit an agency's letter of violation must weigh the letter's prejudicial effect against its probative value pursuant to Rule 403. See id. We conclude that the same rule should apply when a district court is asked to admit an agency's determination that insufficient facts exist to continue an investigation.7

The fact that Judge Jelderks may have admitted the BOLI documents without performing the weighing process mandated by Rule 403 does not necessarily require reversal. "An evidentiary error does not require reversal of a jury verdict unless a party's substantial rights were affected." Gilchrist, 803 F.2d at 1500. In a civil case, the question of whether a party's substantial right to a jury trial has been affected turns on whether "the jury's verdict is more probably than not untaintedby the error." Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir. 1983). If the jury more probably than not would have reached the same result absent the error, the error is harmless and the party's substantial rights have not been affected. See id.

After reviewing the record, we conclude that the jury more probably than not would have found for Boise even if the BOLI documents had been excluded. Beachy's discrimination case was not particularly strong, and Boise presented substantial evidence that it had legitimate, non-discriminatory reasons for terminating her. Moreover, Judge Jelderks instructed the members of the jury that "[y]ou must each decide the case for yourself" based upon all of the evidence presented during the trial. We therefore conclude that any error in the admission of the BOLI documents was harmless and did not affect Beachy's substantial rights.

With respect to Beachy's assignment of error based upon hearsay, she failed to raise a hearsay objection to the BOLI documents at trial. Thus we apply the plain error standard, under which we consider whether the asserted error was highly prejudicial and affected Beachy's substantial rights. See Sablan v. Department of Fin. of C.N.M.I., 856 F.2d 1317, 1323 (9th Cir. 1988); see also Scott v. Ross, 140 F.3d 1275, 1285 (9th Cir. 1998), cert. denied, 119 S. Ct. 1285 (1999). As is set forth above, we have concluded that any error in the admission of the BOLI documents was harmless and did not affect Beachy's substantial rights.

Accordingly, the judgment of the district court is

AFFIRMED.