                             NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                       MAY 12 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 CEZAR CARVAJAL,                                   No.    14-55914

              Plaintiff - Appellant,               D.C. No. 3:10-cv-02319-GPC-
                                                   MDD
    v.

 PRIDE INDUSTRIES INC. and DOES, 1-                MEMORANDUM*
 10,

              Defendants - Appellees.

                      Appeal from the United States District Court
                        for the Southern District of California
                      Gonzalo P. Curiel, District Judge, Presiding

                          Argued and Submitted May 4, 2016
                                Pasadena, California

Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.

         Cezar Carvajal sued his former employer, Pride Industries, Inc., alleging that

Pride Industries failed to accommodate his knee injury and fired him in retaliation

for exercising his rights under the Americans with Disabilities Act (ADA). The

jury returned a verdict in favor of Pride Industries and, following a bench trial, the


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court also found in favor of Pride Industries on the equitable claim for

retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

    1. The district court did not abuse its discretion by formulating instructions

that asked the jury to consider the major life activities of both “working” and

“manual tasks.” A “disability” under the ADA is defined as a “physical or mental

impairment that substantially limits one or more major life activities[.]” 42 U.S.C.

§ 12102 (emphasis added). Here, the district court reasonably decided that both

instructions were necessary to avoid jury confusion, given Carvajal’s theory at trial

and the conflicting evidence regarding the extent of his work on ladders.1

Moreover, the verdict form made clear that Carvajal could meet his burden by

establishing a substantial limitation in either “working” or his ability to perform

“manual tasks” alone. See Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir. 2006) (in

the absence of specific evidence to the contrary, the court “presume[s] that juries

follow their instructions.”).

    2. The district court did not abuse its discretion by excluding an investigative

report from the Department of Labor Office of Federal Contract Compliance


1
 The parties agree that the 2008 ADA amendments – which became effective after
Carvajal’s employment with Pride ended – do not apply to this case.

                                          2
Programs or the testimony of two employees responsible for preparing the report.

The report’s findings embraced many of the same ultimate issues that the jury was

asked to decide at trial, and the district court permissibly concluded that the report

was “overly prejudicial” and “basically takes away the jury’s role as fact finders.”

See Fed. R. Evid. 403; Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500

(9th Cir. 1986) (“The probative value of a letter of violation may not, in every

case, outweigh the potential for prejudice.”). For the same reason, the district court

did not abuse its discretion by excluding related testimony from the report’s

authors, or by refusing to allow Carvajal to back-door the report’s findings into

evidence through cross-examination of other witnesses.

   3. The district court did not abuse its discretion by excluding testimony from

Raquel Vazquez, a Pride Industries supervisor, regarding another manager’s

purported refusal to provide reasonable breaks or his alleged verbal abuse of

employees. Carvajal does not dispute that another former co-worker already

offered overlapping testimony on the same issues, and trial courts have

considerable latitude to exclude cumulative evidence. See, e.g., United States v.

Hearst, 563 F.2d 1331, 1349 (9th Cir. 1977) (citing Hamling v. United States, 418

U.S. 87, 127 (1974)).

                                           3
   4. Finally, because there was no instructional error, the jury’s factual findings

did not lead to a Seventh Amendment violation during the bench trial on Carvajal’s

equitable claim for retaliation. Cf. Miller v. Fairchild Indus., Inc., 885 F.2d 498,

507 (9th Cir. 1989).

   AFFIRMED.




                                           4
