                           NOT FOR PUBLICATION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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