IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20773
Summary Calendar
SHERRY SOUTHARD, ET AL.,
Plaintiffs,
SHERRY SOUTHARD AND TAMMY LEIS
Plaintiffs-Appellants,
versus
THE TEXAS BOARD OF CRIMINAL JUSTICE, ET AL.,
Defendants
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-95-697, CA-H-94-3003, CA-H-94-2801, CA-H-94-2642,
CA-H-94-2277, CA-H-94-1767 & CA-H-94-396)
September 18, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellants Southard and Leis appeal the jury verdict denying
their Title VII sexual harassment claim. Appellants contend that
the trial court erred in (i) restricting the scope of discovery and
evidence admitted, (ii) excluding appellants’ expert testimony, and
(iii) allowing evidence of appellants’ sexual history and
predisposition. We affirm, and we address the primary issues
herein.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
To establish a hostile work environment sexual harassment
claim, an employee must show that (1) she belongs to a protected
group; (2) she was subject to unwelcome sexual harassment; (3) the
harassment complained of was based upon sex; (4) the harassment
complained of affected a term, condition, or privilege of
employment (i.e., that the sexual harassment was so pervasive or
severe as to alter her conditions of employment and create an
abusive working environment); and (5) the employer knew or should
have known of the harassment and failed to take prompt remedial
action reasonably calculated to end the harassment complained of.
See, e.g., Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806
(5th Cir. 1996). Appellants, employees of the Texas Department of
Criminal Justice (“TDJC”), allege that they were subject to Title
VII sexual harassment by Oscar Strain at TDJC’s Michael Prison
Unit. They argue that TDJC knew or should have known of the
harassment and failed to address adequately their sexual harassment
claims.
Appellants maintain that the trial court erred in restricting
discovery and excluding evidence of the sexual harassment
allegations of various non-plaintiffs. We review evidentiary and
discovery rulings of the district court under the deferential
abuse-of-discretion standard. See Kelly v. Boeing Petroleum
Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995). The district court
excluded testimony of women who claimed to have also been
victimized by Strain. The court held that the excluded evidence
was not relevant to proving the existence of a hostile work
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environment at the Michael Unit because the allegations involved
conduct occurring at other units, hundreds of miles away, and
involved conduct that occurred subsequent to the period of time at
issue in the lawsuit. While we disfavor blanket exclusions of
evidence, a trial court’s “careful, subjective consideration of the
relevance of each proffered witness’ testimony” weighs in favor of
upholding the district court’s decision. Kelly, 61 F.3d at 359.
In this case, the record reveals that the district court did not
issue a blanket exclusion; rather, the court carefully considered
each piece of evidence. The court found that allegations of
misconduct occurring after the relevant period or at another venue
were not relevant to whether a hostile environment existed at the
Michael Unit during the applicable period. This logical reasoning
does not constitute an abuse of discretion.
Nevertheless, even if the evidence were held to be relevant to
the existence of a hostile work environment at the Michael Unit,
and the district court abused its discretion in excluding it, we
would uphold the evidentiary rulings pursuant to Federal Rule of
Evidence 403. Rule 403 provides that relevant evidence may be
excluded if “its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” FED. R. EVID. 403.
Evidence of remote incidences of sexual harassment would not only
create prejudice towards the defendant, but would also promote
confusion and delay.
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Furthermore, erroneous evidentiary rulings by the trial court
constitute reversible error only when those rulings have affected
a party’s substantial rights. See FED. R. EVID. 103. An error does
not affect substantial rights “if the court is sure, after
reviewing the entire record, that the error did not influence the
jury or had but a very slight effect on its verdict.” EEOC v.
Manville Sales Corp., 27 F.3d 1089, 1094 (5th Cir. 1994)(quoting
Munn v. Algee, 924 F.2d 568, 573 (5th Cir. 1991)). Exclusion of
evidence regarding conduct remote in time and place did not affect
appellants’ substantial rights because a jury could not properly
consider it in making a decision about the conduct in question.
Appellants also maintain that discovery was inappropriately
limited. Information sought in discovery must be relevant to the
subject matter in the case and must at least be reasonably
calculated to lead to the discovery of admissible evidence. See
FED. R. CIV. P. 26(b)(1). Thus, the district court’s denial of
discovery into matters not related to the sexual harassment claim
did not constitute an abuse of its discretion.
In addition, appellants contend that the trial court erred in
excluding the expert testimony of V. Lopez-Robinson even though she
may be considered an expert in employment law. We review the
admission or exclusion of expert evidence for an abuse of
discretion. See Moore v. Ashland Chem., Inc., No. 95-20492, 1998
WL 476214, at *4 (5th Cir. Aug. 14, 1998). The trial court found
that Ms. Lopez-Robinson’s lack of EEO and sexual harassment
investigative experience precluded her from testifying as an expert
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on the issue of whether the EEO conducted a proper sexual
harassment investigation. This conclusion--that Ms. Lopez-Robinson
did not possess the specific expertise necessary--does not show an
abuse of discretion.
Finally, appellants maintain that the trial court abused its
discretion in admitting into evidence correspondence written by one
appellant, Southard, to an inmate housed at the Michael Unit.
Appellants contend that the correspondence improperly shows
Southard’s sexual history and predisposition in violation of
Federal Rule of Evidence 412 because it reveals Southard’s romantic
relationship with the inmate and because it has a sexual content.
However, the correspondence between Southard and the inmate, a
white supremacist, contains statements demonstrating Southard’s
racial hostility towards Oscar Strain and thus reveals a possible
motive for her lawsuit. Therefore, the trial court did not abuse
its discretion in admitting the evidence.
AFFIRMED.
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