[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 25, 2007
No. 06-14851 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-03497-CV-RLV
SAMUEL D. SAUNDERS,
Plaintiff-Appellant,
versus
ED VOYLES CHRYSLER, INC.,
ED VOYLES AUTOMOTIVE GROUP, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 25, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Samuel Saunders, a Caucasian male, appeals from a jury verdict for Ed
Voyles Chrysler, Inc. and Ed Voyles Automotive Group, Inc. (Voyles). Saunders
alleges that Voyles retaliated against him by ordering him to repay a past-due
salary advance and firing him after he complained that dealership employees used
racial slurs and supervisors threatened two black employees with pay cuts. On
appeal, we consider whether the district court abused its discretion when it
excluded deposition testimony as redundant, refused to admit a letter into evidence
on authentication grounds, and limited the cross-examination of a witness. We
also examine whether the district court improperly instructed the jury concerning
Saunders’ claim or the law governing retaliation, or erred on the special verdict
form.
First, Saunders argues the district court abused its discretion by excluding
deposition testimony of four witnesses as cumulative evidence. See Conroy v.
Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (reviewing
a district court’s evidentiary rulings for abuse of discretion). Even relevant
evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice . . . or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Fed. R. Evid. 403. All four
witnesses for whom Saunders sought to introduce deposition excerpts testified at
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trial. Furthermore, the court explicitly noted that Saunders could use the excerpts
for impeachment purposes if the witnesses contradicted earlier testimony. The
district court did not abuse its discretion by ruling that the deposition excerpts were
cumulative and would constitute a waste of time if read into the record.
Saunders also objects to the district court’s refusal to admit a letter written to
the EEOC by Voyles’ prior counsel when the witness on the stand did not
recognize the letter. The court did not abuse its discretion by excluding the letter
for insufficient authentication. See Conroy, 375 F.3d at 1232.
Saunders argues the district court abused its discretion by limiting the cross-
examination of a witness about a different letter that had already been admitted
into evidence. Even if the limitation of the cross-examination was improper,
Saunders did not make an offer of proof as to what information the continued
questioning would elicit. The district court’s choice to allow the jury to review the
letter rather than permit questioning was not an abuse of discretion. See Conroy,
375 F.3d at 1232.
Finally, Saunders argues the district court erred in the jury instructions and
special verdict form. Saunders raises two preserved objections to the jury
instructions, the use of “harassment” instead of “discriminatory practice,” and the
failure to mention the threatened pay cuts. The district court instructed the jury
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generally that retaliation for “opposing unlawful employment practices” included
discriminatory treatment of employees based on race. The jury had heard the facts
Saunders presented explaining his complaints were based on both the racial slurs
and threatened pay cuts. It found his complaints were not a motivating factor in
any adverse employment action. Although the district court improperly instructed
the jury on a defense that only applies in sexual harassment cases, Saunders has not
demonstrated he was prejudiced by the error. See Oladeinde v. City of
Birmingham, 230 F.3d 1275, 1295-96 (11th Cir. 2000) (reviewing jury instructions
de novo but reversing only if the instructions misstated the law or misled the jury
and prejudiced the party).
The remainder of Saunders’ arguments were not presented to the district
court and are reviewed for plain error: (1) that the jury should not have considered
whether Voyles had a policy against harassment or whether Saunders had followed
that policy and (2) that the jury should not have been limited to finding termination
as the adverse employment action. See Farley v. Nationwide Mut. Ins. Co., 197
F.3d 1322, 1329, 1330-31 (11th Cir. 1999) (reviewing verdict form and jury
instructions together under a plain error standard for unpreserved objections).
Although the jury ultimately found that Saunders’ complaints did not comply with
Voyles’ anti-harassment policy, it also found his complaints about harassment
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were not a motivating factor in any adverse employment action. Even if the
special verdict’s question about Voyles’ harassment policy was error, the jury
found he was not fired because of his complaints. Second, the district court’s
instruction to the jury regarding an adverse employment action was correct; any
problem in the verdict form was simply an omission of one of plaintiff’s theories.
Saunders failed to insist the district court include one of his theories of the case,
that the cutting of the cash advance was an adverse employment action. Finally,
Saunders fails to show any error was “so fundamental as to result in a miscarriage
of justice.” Maiz v. Virani, 253 F.3d 641, 676 (11th Cir. 2001) (“Reversal for plain
error in the jury instructions or verdict form will occur only in exceptional cases
where the error is so fundamental as to result in a miscarriage of justice”).
Accordingly, we affirm the jury’s verdict.
AFFIRMED.
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