IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
August 14, 2007
No. 06-50488
Charles R. Fulbruge III
Clerk
ELIBERTO C. GUERRA
Plaintiff - Appellant
v.
NORTH EAST INDEPENDENT SCHOOL DISTRICT
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY, CLEMENT & OWEN, Circuit Judges.
PER CURIAM:
Plaintiff Eliberto Guerra was employed by defendant North East
Independent School District (NEISD) as a heating, ventilation, and air
conditioning (HVAC) technician for approximately thirty years. In July 2001,
Guerra applied for a promotion to Building Environmental Systems Foreman for
NEISD. After an initial round of interviews, Guerra was not selected for further
consideration.
Guerra filed a charge of age discrimination under the Age Discrimination
in Employment Act1 with the EEOC. The EEOC eventually determined that
1
29 U.S.C. § 621 (2000).
No. 06-50488
NEISD had discriminated against Guerra based on his age and issued Guerra
a right-to-sue letter.
Guerra sued NEISD in district court for age discrimination, retaliation,
and constructive discharge. The district court granted NEISD’s motion for
summary judgment regarding the retaliation and constructive discharge claims
but denied summary judgment on Guerra’s age discrimination claim.
Prior to trial, Guerra sought to introduce the EEOC letter, the EEOC file,
and NEISD’s response to the EEOC charge as evidence. The district judge
excluded all of the EEOC documents from evidence. At the conclusion of trial,
the jury found in NEISD's favor. In this appeal, Guerra challenges the jury
instructions and exclusion of the EEOC evidence.
Guerra argues that the jury instructions contained the improper causation
standard for an ADEA pretext case. Guerra did not object to the jury
instructions at trial, so the review is for plain error.2 Guerra must show “(1) that
an error occurred; (2) that the error was plain, which means clear or obvious;
(3) the plain error must affect substantial rights; and (4) not correcting the error
would seriously impact the fairness, integrity, or public reputation of judicial
proceedings.”3 “In determining whether a particular jury instruction was
erroneous, we consider the jury charge as a whole.”4 A reversal is appropriate
when “the charge as a whole leaves us with the substantial and ineradicable
doubt whether the jury has been properly guided in its deliberations.”5
The jury instructions stated: “To establish age discrimination pursuant
to this statute, the plaintiff must prove by a preponderance of the evidence all
2
Septimus v. Univ. of Houston, 399 F.3d 601, 606-07 (5th Cir. 2005).
3
Id. at 607.
4
Id.
5
Id. (quoting Turnage v. Gen. Elec. Co., 953 F.2d 206, 211-12 (5th Cir. 1992)).
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No. 06-50488
of the following five elements: . . . 5. His age (1) was a motivating factor and
(2) had a determinative influence in the defendant’s decision-making process.”
The jury verdict form also read: “5. (1) Was the plaintiff’s age a motivating
factor in, and (2) did the plaintiff’s age have a determinative influence in, the
defendant’s decision-making process?” Question five provided the jury with a
single pair of yes–no blanks.
Guerra argues that the instructions and verdict form used an incorrect
causation standard. There are two types of ADEA cases when the defendant
provides a non-discriminatory reason for the adverse employment
action—mixed-motive and pretext.6 In a mixed-motive case, the proper
causation standard is whether the improper characteristic was a “motivating
factor” of the employer’s decision.7 In a pretext case, the causation standard is
whether the employer would have taken the action “but for” the improper
characteristic—a more stringent standard than “motivating factor.”8
Here, the jury was requested to answer a single question that contained
both the “motivating factor” and “but for” standards. Neither party disputes
that the case was tried as a pretext case and that the “but for” standard (phrased
here as “determinative influence”) was therefore appropriate. The question
before us is whether the inclusion of “motivating factor” alongside “but for” is
plain error.
The two standards are different points along the same continuum—“but
for” is inclusive of “motivating factor.” If an employer would not have acted but
for the improper characteristic, the improper characteristic is necessarily a
motivating factor in the employer’s decision.
6
Id. at 607-08.
7
Id. at 608.
8
Id.
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No. 06-50488
The inclusion of the “motivating factor” question did not create any extra
burden for Guerra: he had to prove that he did not receive the promotion but for
his age. If Guerra had successfully shown that his age was the but-for cause, it
would have necessarily been a motivating factor as well. In this context, the
addition of “motivating factor” to the jury instructions was merely superfluous.
Though unnecessary, the inclusion of the lesser standard did not impact
Guerra’s substantial rights. Guerra has failed to demonstrate plain error, and
we affirm the district court’s judgment.
Guerra also argues that the district court was required to hold a hearing
to perform a balancing test under Federal Rule of Evidence 403 before excluding
the EEOC evidence. We reverse evidentiary decisions only when the district
court clearly abused its discretion and a party’s substantial rights were affected.9
An EEOC determination or factual finding is “an exception to the hearsay
exclusion rule, if it falls within the admissibility provision of Rule 803(8)(C) as
‘factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.’”10 Federal Rule of Evidence 403 requires
exclusion of evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice . . . .” Though the EEOC letter was not automatically
barred as hearsay, the district judge held that its risk of prejudice outweighed
its probative value.
Guerra asserts that the district judge was required to hold a hearing to
discuss the evidence and allow Guerra to make rebuttal arguments against
excluding the evidence. Guerra provides no cases to support this proposition,
and it is not a requirement of Federal Rule of Evidence 403.
9
Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th Cir. 1991).
10
McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 399 (5th Cir. 1985) (quoting FED.
R. EVID. 803(8)(C)).
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No. 06-50488
A number of factors weighed against the introduction of the EEOC
evidence. First, the EEOC letter was created under questionable
conditions—the EEOC investigators initially determined that NEISD had not
discriminated against Guerra but later, following complaints by Guerra to a
member of Congress, reopened the file and reversed their decision without any
new evidence. The district judge did not allow NEISD to subpoena the EEOC
investigators to explain this matter.
Second, the EEOC evidence spoke directly to the ultimate issue in the
case. It would likely have prejudiced the jury since the EEOC made its own
factual determination that age discrimination occurred.
The district court did not abuse its discretion in excluding the EEOC
evidence.
AFFIRMED.
5