NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS ALLAN WARD, an individual, 

Plaintiff-Appellant, 

 v. 

COMMSCOPE, INC., a Delaware 

corporation, 

Defendant-Appellee.

No. 23-55608 

D.C. No. 

3:21-cv-00370-H-DEB 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Submitted June 7, 2024**

Pasadena, California

Before: M. SMITH and BADE, Circuit Judges, and FITZWATER,*** District Judge.

Plaintiff Thomas Ward appeals the denial of his motion for a new trial after 

the district court entered judgment for Defendant CommScope, Inc. (CommScope), 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Sidney A. Fitzwater, United States District Judge for 

the Northern District of Texas, sitting by designation.

FILED

JUN 11 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Ward’s former employer. We assume the parties’ familiarity with the facts, so we 

recount them here only as necessary to provide context to our ruling. The district 

court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction pursuant 

to 28 U.S.C. § 1291, and we affirm. 

1. The district court did not abuse its discretion in denying Ward’s motion 

for a new trial. See Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th 

Cir. 2007). We reverse a district court’s denial of a motion for a new trial “only 

where there is an absolute absence of evidence to support the jury’s verdict.” Id.

(quoting Desrosiers v. Flight Int’l of Fla. Inc., 156 F.3d 952, 957 (9th Cir. 1998)). 

California Labor Code § 1102.6 states that an employer can prove a defense 

to a whistleblower retaliation claim by presenting “clear and convincing evidence

that the alleged [adverse employment] action would have occurred for legitimate, 

independent reasons even if the employee had not engaged in [protected] activities

. . . .” Cal. Lab. Code § 1102.6. At trial, CommScope presented two reasons for 

firing Ward that it claims were legitimate and independent: (1) that Ward violated 

CommScope’s patent abandonment process, and (2) that Ward failed to show 

sufficient improvement in his performance during his Performance Improvement 

Plan (PIP). 

Ward argues that the district court erred by requiring that the proffered 

reasons for his termination be “independent” from each other, rather than from his
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alleged whistleblower activity. We disagree. The district court clearly recognized 

that there was ample evidence in the record for the jury to conclude that he was 

terminated for reasons that were independent from his alleged whistleblower 

activity. The district court merely responded to Ward’s argument that the jury 

must have found that the PIP was retaliatory. 

Ward also contends that the district court should have analyzed whether the 

proffered reasons were independent from Ward’s retaliation claim under California 

Labor Code § 1102.5(c), which prohibits retaliation for an employee’s refusal to 

participate in an activity that would result in a legal violation. Cal. Lab.

Code§ 1102.5(c). At trial, however, Ward presented his claim under § 1102.5(b), 

which prohibits retaliation for reporting violations of law. Cal. Lab. Code § 

1102.5(b). Ward did not argue in his motion for a new trial that § 1102.5(c) 

controlled the legitimate and independent reason analysis. Because Ward did not 

ask the jury to decide whether CommScope violated § 1102.5(c) and because Ward 

did not ask the district court to evaluate his § 1102.6 argument as it relates to § 

1102.5(c), Ward waived it. See Tarpey v. United States, 78 F.4th 1119, 1126 (9th 

Cir. 2023). We therefore analyze only whether the evidence is sufficient to support

the jury’s verdict that the proffered termination reasons are legitimate and 

independent from Ward’s disclosure of alleged legal violations pursuant to § 

1102.5(b), and we conclude that it is. See Merrick, 500 F.3d at 1013.
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First, the evidence supports a finding that Ward’s refusal to participate in the 

patent abandonment process was a legitimate, independent reason for his 

termination. The district court relied on testimony that Ward did not follow the 

abandonment procedure, including Ward’s admission that he did not follow the 

procedure as to a particular patent. As early as 2016, four years prior to Ward’s 

termination, Ward’s supervisor expressed concern with Ward’s failure to adhere to 

the abandonment procedure. Ward argued before the district court that 

CommScope “must point to, for example, poor performance prior to these adverse 

employment actions, or, for example insubordination or theft, etc., that had nothing 

to with Plaintiff’s whistleblowing reports.” Because there is evidence that Ward 

failed to properly engage in the patent abandonment process as early as 2016, prior 

to any of Ward’s grievance reports, the record supports a finding of legitimacy and 

independence.1

Second, the record supports the district court’s holding that Ward’s

termination for failure to show improvement during his PIP was legitimate and 

independent. Ward demonstrated performance issues in 2019 and received the 

lowest possible rating at his performance review, which led to his PIP. The PIP 

1 We reject Ward’s argument that participating in the patent abandonment process 

for patent 18027 would have led to a violation of patent regulation Rule 56, see 37 

C.F.R. § 1.56, as the evidence at trial demonstrated that outside counsel found a 

way to legitimately pursue the patent. 
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stated that Ward failed to demonstrate that he could perform the essential functions 

of Senior IP Counsel, including producing work at the expected level, responding 

diligently to office actions, and accurately identifying patentable distinctions. The 

district court pointed to specific evidence supporting this conclusion, including 

Ward’s supervisor’s statement that Ward was unable to sufficiently describe an 

invention in detail despite Ward’s extensive history with the case, a PIP review 

describing a potentially harmful office action response prepared by Ward, which 

included arguments that did not align with standard legal approaches, and another 

email describing a different office action response which contained inconsistent 

arguments. Ward insists that his supervisor’s PIP conclusions “could have been 

involved in a situation where Cullen demanded Plaintiff proceed” in violation of § 

1102.5(c). He waived this argument by not raising it in the district court. 

Therefore, we do not consider it. See Tarpey, 78 F.4th at 1126. 

2. Pursuant to Rule 606(b) of the Federal Rules of Evidence, the district 

court did not err in declining to consider a juror declaration that stated that the jury 

did not use the clear and convincing level of proof. Fed. R. Evid. 606(b). The law 

presumes that jurors follow the instructions given to them. Richardson v. Marsh, 

481 U.S. 200, 206 (1987). Rule 606 codifies this principle and provides that: 

“During an inquiry into the validity of a verdict or indictment, . . . [t]he court may 

not receive a juror’s affidavit or evidence of a juror’s statement” about “any 
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statement made or incident that occurred during the jury’s deliberations; the effect 

of anything on that juror’s or another juror’s vote; or any juror’s mental processes 

concerning the verdict.” Fed. R. Evid. 606(b)(1). 

Ward presented the juror declaration to question the validity of the verdict. 

The declaration discusses statements made during deliberations and jurors’ mental 

processes. Therefore, Rule 606(b) forbids the district court from considering it. 

No Rule 606(b) exception applies because the declaration does not discuss any 

extraneous prejudicial information, any improper outside influence, or any mistake 

in entering the verdict on the verdict form. See Fed. R. Evid. Rule 606(b)(2). The 

district court properly excluded the declaration. 

AFFIRMED.