                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            NOV 13 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
EFRAIN REYNAGA,                                  No.   18-35655

              Plaintiff-Appellant,               D.C. No. 6:11-cv-06282-MC

 v.
                                                 MEMORANDUM*
ROSEBURG FOREST PRODUCTS, an
Oregon corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                     Argued and Submitted October 25, 2019
                                Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

      Efrain Reynaga appeals the District Court’s judgment in his employment

discrimination action against Roseburg Forest Products. Directed verdict was




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
proper as to Reynaga’s disparate treatment locker search claim, and none of the

challenged procedural or evidentiary decisions were an abuse of discretion.

      A directed verdict is proper “‘when the evidence permits only one

reasonable conclusion as to the verdict.’” Moore v. Local Union 569 of Int’l Bhd.

of Elec. Workers, 989 F.2d 1534, 1537 (9th Cir. 1993) (quoting McGonigle v.

Combs, 968 F.2d 810, 816 (9th Cir. 1992)). No substantial evidence supported

Reynaga’s contention that he experienced disparate treatment. Witnesses agreed

that management executed the locker search consistently and only opened an

employee’s locker if the dogs “alerted” in front of it. No witness could confirm that

management declined to search any white employee’s locker after the dogs in fact

alerted—a showing upon which Reynaga’s disparate treatment claim depends. See,

e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Reynaga’s

supplemental excerpts of record do not change this analysis. The only reasonable

conclusion was that Roseburg treated Reynaga the same as other employees.

      The District Court’s sequestration order, which prohibited only the

discussion of ongoing testimony during breaks, did not prejudice Reynaga. Cf.

Perry v. Leeke, 488 U.S. 272, 281–85 (1989).




                                          2
      We review evidentiary rulings for an abuse of discretion. See Sprint/United

Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). There was no such abuse

here. The District Court did not err in excluding evidence pertaining to the locker

search, as it could not have given rise to any relevant inference. Nor did it err by

excluding evidence regarding Reynaga’s job assignments. That theory was not

included in the pretrial order. See U.S. v. First Nat’l Bank of Circle, 652 F.2d 882,

886 (9th Cir. 1981). There was no error in the admission of Reynaga’s own racially

derogatory statements. See, e.g., Hrobowski v. Worthington Steel Co., 358 F.3d

473, 476 (7th Cir. 2004); Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.

1999). Statements by Reynaga’s son and Mr. Hill regarding firearms and

derogatory language at the mill were irrelevant because Reynaga failed to make an

offer of proof that he was aware of the offered information.



      AFFIRMED.




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