Jill Doran-Slevin v. United Parcel Service , 690 F. App'x 532 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 03 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JILL DORAN-SLEVIN, No. 15-35093
Plaintiff-Appellee, D.C. No.
2:12-cv-00068-SEH
v.
UNITED PARCEL SERVICE, INC., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, Senior District Judge, Presiding
Argued and Submitted April 3, 2017
Seattle, Washington
Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,**
Chief District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable John R. Tunheim, Chief United States District Court
Judge for the District of Minnesota, sitting by designation.
Jill Doran-Slevin appeals the district court’s denial of her motion for
judgment as a matter of law and its grant of judgment as a matter of law to United
Parcel Service, Inc. (“UPS”) regarding her retaliation claim, the district court’s
grant of judgment as a matter of law to UPS on her wrongful discharge claims in
violation of public policy and written personnel policies, and the district court’s
jury instructions on her wrongful discharge without good cause claim. Doran-
Slevin also requests a new trial on the grounds of district court bias. We affirm.
First, issues not preserved in the pretrial order are eliminated from the
action. Hunt v. Cty. of Orange, 672 F.3d 606, 617 (9th Cir. 2012). Here, the
pretrial order limited the retaliation claims to a theory that UPS terminated Doran-
Slevin in retaliation for a discrimination claim Doran-Slevin filed with the EEOC.
It is undisputed that UPS did not learn about the EEOC claim prior to terminating
Doran-Slevin, and UPS objected to Doran-Slevin expanding her retaliation claims
beyond the theory in the pretrial order. Thus, the district court did not err in
granting UPS judgment as a matter of law, as no reasonable juror could have
determined UPS terminated Doran-Slevin based on the EEOC claim.
Second, a discharge is wrongful if “the employer violated the express
provisions of its own written personnel policy.” Mont. Code Ann. § 39-2-
904(1)(c). In response to Doran-Slevin’s April 2012 letter, UPS followed its
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Employee Dispute Resolution (“EDR”) program by conducting an investigation,
and the program did not prohibit UPS from terminating Doran-Slevin for a reason
separate and unrelated to that letter. Additionally, Doran-Slevin’s May 2012 letter
written in response to UPS’s proposed separation agreement and for the purpose of
“working towards resolution through [a] separation agreement” did not trigger the
application of the EDR program. Thus, the district court did not err in granting
UPS judgment as a matter of law.
Third, the jury instructions regarding discharge for a legitimate business
reason, discharge for failure to obey lawful directives, and an employee’s
obligation to obey the employer accurately reflected Montana law. Mont. Code
Ann. § 39-2-404; Mysse v. Martens, 926 P.2d 765, 769-71 (Mont. 1996); Buck v.
Billings Mont. Chevrolet, Inc., 811 P.2d 537, 540 (Mont. 1991). Additionally,
Doran-Slevin did not offer any authority as to why the jury instruction that all
parties, including a corporation, are equal before the law is inapplicable or
prejudicial.
Fourth, “judicial comments on the evidence are permissible,” and when
counsel did not object to allegedly improper statements, the Court reviews only for
plain error. United States v. Spencer, 1 F.3d 742, 746 (9th Cir. 1992). As Doran-
Slevin’s counsel did not object to the district court’s comments and because the
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record supported those statements, the Court finds no plain error in admonishing
Doran-Slevin’s counsel for speculatively arguing that UPS desired that Doran-
Slevin would admit fault, contending UPS failed to follow its EDR program when
that claim was no longer an issue in the case, attempting to ask a witness about
matters not in the record, and stating counsel’s personal opinion as to the
credibility of witnesses.
AFFIRMED.
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