United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 29, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 03-30948
Summary Calendar
______________________
LESLIE V. ROGERS,
Plaintiff - Appellant,
v.
MICHAEL K. CLAY; CLAYS RV LLC, doing business as Clays RV
Center; CLAYS RV CENTER INC,
Defendants - Appellees.
______________________
Appeal from the United States District Court
for the Western District of Louisiana,
Monroe Division
USDC No. 01-CV-1508
______________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Appellant, Leslie V. Rogers, brought this claim of gender
discrimination against her former employer, Clay’s RV Center,
Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Following a jury trial, the district court
entered judgment in favor of Clay’s RV Center, Inc. On appeal,
*
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this opinion should not be published and is not precedent except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.
1
Rogers asserts that the district court erred by refusing to grant
her post-verdict motion for judgment as a matter of law. Finding
no plain error as to the claims raised by Rogers, we AFFIRM the
judgment of the trial court.
Factual & Procedural History
Leslie Rogers was employed as a salesperson by Clay’s RV
Center, Inc. (“Clay’s RV”), a small recreational vehicle
dealership, from October 1997 through May 1998. Other persons
employed by Clay’s RV while Rogers worked there were: Michael
Clay, 11% owner and manager of Clay’s RV’s West Monroe office;
two to three salespersons, all of whom were male aside from
Rogers; and Karen Coates, an administrative assistant.
At trial, Rogers claimed the work environment at Clay’s RV
was hostile toward women. She stated that she was prohibited
from using company vehicles as the men did, and that she was not
issued a company sports jacket, as were the male salespersons.
Rogers testified that the male salespersons were rude to the
females on staff, but related well to one another. She also
accused Mr. Clay of occasional physical forcefulness, and of
commenting that women were not permitted entry into the storage
room because it was a men’s club.
Rogers testified that Mark Dent, a salesperson, frequently
remarked that women should not be working at Clay’s RV — that it
was a man’s business where women did not belong. Rogers related
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an incident in which Dent allegedly berated Karen Coates and told
her to limit her work to her “little secretarial duties.” Coates
testified that she reported the incident to Mr. Clay, who said he
would speak to Dent. Coates was fired shortly thereafter,
purportedly for economic reasons.
According to Rogers, another male salesperson, Bill Delrio,
regularly acted in a harassing manner toward women. Rogers
testified that Delrio often made sexual comments. She also
stated that on April 1, 1999, Delrio came into her office and
accused her of stealing one of his customers. Delrio allegedly
called Rogers a “backstabber,” a “cheater,” and a “bitch,” and
shouted at her for some time. Rogers testified that, as a
result, she became afraid to be alone in the building with
Delrio.
Mr. Clay was out of town at the time of the April 1 incident
with Delrio, but returned to the Louisiana office in mid-April.
Rogers reported Delrio’s behavior to Mr. Clay on his second day
back in the office. Rogers testified that Mr. Clay cut short her
discussion of Delrio’s alleged outburst, told her to get over it,
and to get back to her work. Rogers allegedly approached Mr.
Clay a second time about Delrio; Clay allegedly responded that
Rogers had “yet to see a temper.” Rogers claimed that shortly
after she reported the incident, she stopped receiving phone
messages from her customers, family, or friends.
Rogers alleged that on May 6, 1999, she was dismissed from
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Clay’s RV. Rogers testified that Mr. Clay entered her office,
informed her that he was interviewing candidates for her sales
position, and instructed her to leave. She stated that when she
attempted to retrieve her personal belongings and sales records
from her desk, Mr. Clay forcibly knocked her away from her desk,
grabbed her wrists, and pushed her out the front door. She
claimed that Mr. Clay laughed as he locked the door behind her.
Rogers complained to the local sheriff’s department about Mr.
Clay’s behavior, but never followed up on that complaint. Rogers
filed the instant action on August 13, 2001.
In response to Rogers’s claims, Clay’s RV denied that Rogers
had been subjected to a hostile work environment. It also denied
that Rogers was fired. Rather, Mr. Clay accused Rogers of
abandoning her job, and testified that he had planned to replace
Rogers with a new salesperson due to poor work performance on
Rogers’s part. Clay’s RV further denied that any perceived
termination was based on gender discrimination.
After a trial on the merits, the jury found that: (1) Rogers
had been subjected to a hostile work environment because of her
gender; (2) Clay’s RV knew of or should have been aware of the
hostile environment but failed to take prompt remedial measures;
and (3) Rogers had failed to take advantage of reasonable
opportunities to minimize or eliminate the objectionable conduct
or hostile environment. Judgment was entered in favor of Clay’s
RV on June 9, 2003.
4
On September 3, 2003, Rogers moved for judgment as a matter
of law under FED. R. CIV. PRO. 50, or in the alternative, for a
new trial under FED. R. CIV. P. 59, arguing that Clay’s RV
presented no evidence to support the jury’s finding that she had
been provided opportunities to minimize discriminatory conduct,
but had failed to take advantage of those opportunities. The
district court denied her motion. Rogers timely appealed.
Standard of Review
On appeal, Rogers contends that the district court erred in
denying her post-verdict motion for judgment as a matter of law.1
Generally, we review the denial of a motion for judgment as a
matter of law de novo. Deffenbaugh-Williams v. Wal-Mart Stores,
Inc., 188 F.3d 278, 285 (5th Cir. 1999). However, Rogers failed
to move for judgment prior to the close of all evidence and
before the case went to the jury, as required by FED. R. CIV. P.
50. A movant who fails to request judgment as a matter of law
under Rule 50(a) at the close of all of the evidence, before the
matter goes to the jury, “waives its right to file a renewed
post-verdict Rule 50(b) motion, and also waives its right to
challenge the sufficiency of the evidence on appeal.” See United
1
We do not consider the denial of Rogers’s motion for new
trial because she did not raise that issue in her opening brief.
Claims of error not raised in an appellant’s opening brief are
waived for purposes of appeal and cannot be preserved by
belatedly addressing them in a reply brief. Taita Chem. Co.,
Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir.
2001).
5
States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 960 (5th
Cir. 1998) (citing Bay Colony, Ltd. v. Trendmaker, Inc., 121 F.3d
998, 1003 (5th Cir. 1997); Polanco v. City of Austin, Tex., 78
F.3d 968, 974 (5th Cir. 1996); Allied Bank-West, N.A. v. Stein,
996 F.2d 111, 114-15 (5th Cir. 1993)). Accordingly, we treat
Rogers’s request for judgment as a matter of law as raised for
the first time on appeal, and review only for plain error. See
Adames v. Perez, 331 F.3d 508, 511 (5th Cir. 2003). Under the
plain error standard, we must uphold the jury’s verdict if any
evidence was presented to support the verdict. See id. If we
determine that no evidence was offered at trial to support the
jury’s findings, we will remand the case for a new trial only if
the judgment resulted in a manifest miscarriage of justice. Id.;
see also Satcher v. Honda Motor Co., 52 F.3d 1311, 1315 (5th Cir.
1995).
Whether Rogers made a prima facie case of sex discrimination
is not at issue on appeal. Hence, we limit our analysis to the
issue raised by Rogers — whether any evidence was submitted to
support the challenged finding of the jury. Cf. Patterson v.
P.H.P. Healthcare Corp., 90 F.3d 927, 933 (5th Cir. 1996) (after
a case has been fully tried on the merits, the appellate court’s
“inquiry becomes whether the record contains sufficient
evidence”).
Discussion
6
Rogers argues that her motion for judgment as a matter of
law should have been granted because the evidence adduced at
trial was insufficient to support the jury’s verdict. The jury
found the following, by a preponderance of the evidence:
1. Rogers was subjected to a hostile work environment
because of her gender;
2. Clay’s RV knew or should have known of the gender
hostile work environment and failed to take prompt
remedial action;
3. Rogers failed to take advantage of reasonable
opportunities to minimize or eliminate the
objectionable conduct or hostile work environment.
Based on these findings, the district court entered judgment in
favor of Clay’s RV.2 Rogers challenges only the jury’s third
factual finding as being unsupported by the evidence. However,
the record indicates that evidence was presented at trial that
could support the jury’s finding that Rogers did not take
advantage of reasonable opportunities to abate the discriminatory
conduct at Clay’s RV.
As manager and part owner of Clay’s RV, Mr. Clay was the
appropriate person with whom employees should have discussed
their grievances. Trial testimony revealed that while Mr. Clay
was out of the office, he stayed in touch with his employees by
phone. Further, Clay’s RV employee Karen Coates testified that
2
Rogers explicitly states in her appellate brief that she
“has never and does not now” challenge the district court’s jury
instructions or verdict form; nor does she claim that the
district court erred in applying the law in the instant case.
Thus, we refrain from addressing those issues on appeal.
7
while working at Clay’s RV, she felt that Mr. Clay would have
been receptive to her had she approached him with problems about
the workplace.
Notwithstanding Mr. Clay’s apparent availability to hear
employee concerns, Rogers testified that she never reported the
regular remarks made by Delrio and Dent about women to Mr. Clay.
Rogers did not tell Mr. Clay that she felt mistreated or
discriminated against. In addition, Rogers’s testimony reveals
that she did not inform Mr. Clay about Delrio’s alleged outburst
until approximately two weeks after the incident occurred,
despite her purported fear of being present in the office with
Delrio.3 Although Mr. Clay was in the Ohio office during the
weeks surrounding the incident between Rogers and Delrio, Clay’s
RV presented evidence that Mr. Clay was accessible to his
employees by phone while he was away. Further, Rogers testified
that she spoke with Mr. Clay over the phone shortly after the
altercation with Delrio, but elected not to mention the incident
until Mr. Clay’s returned to the Louisiana office.
In sum, the jury possessed at least some evidence that could
sustain a finding that Rogers had opportunities to minimize the
hostile conduct at Clay’s RV, but that she failed to take
advantage of those opportunities. Rogers briefly argues that the
jury’s finding that Clay’s RV failed to take prompt remedial
3
Rogers testified that the incident with Delrio occurred on
April 1, 1999. Mr. Clay returned to the office in mid-April.
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measures amounted to a determination that there were no
reasonable opportunities made available to Rogers to avoid
further discrimination. However, this argument is unavailing
based on the foregoing discussion.
Conclusion
Having found some trial evidence that could support the
jury’s finding that Rogers failed to take advantage of available
opportunities to avoid or reduce the occurrence of discrimination
at Clay’s RV, we are obligated to uphold the verdict.
Accordingly and on these narrow grounds, we conclude that the
district court did not plainly err in denying Rogers’s motion for
judgment as a matter of law; therefore, we AFFIRM judgment in
favor of Clay’s RV.
AFFIRMED.
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