The panel affirmed the district court’s entry of judgment for the City of Las Vegas in Latonia Lister’s lawsuit for employment discrimination, and affirmed the district court’s denial of Lister’s motion for new trial, after a jury found the City did not violate Title VII but nevertheless awarded Lister damages.

The jury found: (1) an incident was severe or pervasive and objectively and subjectively offensive to a reasonable person; but that (2) the incident was not motivated by race or gender; (3) the City did not discriminate against Lister in violation of Title VII; and (4) the City did not retaliate against Lister for reporting the April 7 incident in violation of Title VII. Despite finding no liability, the jury answered a damages question, awarding Lister $150,000. The district court concluded that it could reconcile the verdict without resubmitting it to the jury, and set aside the damages award.

The panel reviewed for plain error two jury instructions that Lister argued contained prejudicial errors. The panel held that when Jury Instruction 12 is read as a whole, the exclusion of race and sex from the first element does not amount to an error—let alone a prejudicial one—as the instruction’s opening paragraph refers to the protected characteristics of race and sex, clearly instructing the jury to assess the elements of a hostile work environment on these grounds.

The panel held that, setting aside the lack of prejudice, there is no conflict between Jury Instruction 12, which directed the jury to assess whether Lister experienced a hostile work environment on the grounds of race and gender, and Jury Instruction 9, which set forth the standard of proof for a gender- or race-based hostile-work-environment claim. The panel held that the district court did not abuse its discretion when it did not resubmit the verdict to the still available jury. The panel noted this court’s precedent holding that, where the jury is still available, a district court’s decision to resubmit an inconsistent verdict for clarification is within its discretion. Facing the opposite question here, the panel held that a district court has discretion not to resubmit an inconsistent verdict for clarification when the jury is still available. Here, the district court’s decision to poll the jury—with both parties’ consent—clarified the seemingly inconsistent liability findings. By confirming the relevant findings of fact, the district court confirmed a clear statement of no liability from the jury. At that point, the district court had sufficient legal grounds to discharge the jury and reconcile the verdict on its own. Given the jury’s finding that there was no race- or sex-based discrimination or retaliation, the jury’s answer to the damages question is best treated as surplusage.

The panel held that because the district court correctly concluded that the verdict could be reconciled, the district court did not abuse its discretion in denying Lister’s motion for a new trial.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/04/24-3933.pdf