Barbara Mines, Plaintiff-appellant, v. Olsten Corp. Inc., Olsten Home Healthcare, Defendants-appellees, 87 F.3d 1320 (9th Cir. 1996)

MEMORANDUM^** 

1. The jury found that race was not a motivating factor in Olsten's decision not to hire Mines. Were there error in the district court's rejection of Mines's proposed jury instruction as to pretext, it was harmless.

2. Mines's position before trial was that she should initially be required to prove only a prima facie case of race discrimination. She proposed a jury instruction during trial, however, that initially required her to prove by a preponderance of the evidence that her race was a motivating factor in her discharge. The district court gave an instruction substantially identical, in relevant part, to the one Mines proposed. For the first time in her reply brief, she argues that she had meant to propose the prima facie instruction rather than the one she actually proposed; that the district court should be charged with knowledge of this based on her pretrial position; and that, had the district court rejected the instruction Mines meant to propose, the error in so doing would not have been harmless. Mines abandoned her pretrial position, however, by proposing the preponderance instruction during trial, thus waiving any claim that the court erred in giving the instruction she actually proposed.

The district court's judgment is AFFIRMED. Olsten's request for attorney's fees is DENIED. Mines's motion for leave to file supplemental excerpts of the record is DENIED as moot.