IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2007
No. 06-41304 Charles R. Fulbruge III
Clerk
MOSES EARL PRICE
Plaintiff - Appellant
v.
ROSIEK CONSTRUCTION COMPANY
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges:.
PER CURIAM:
Moses Earl Price appeals the judgment in favor of Rosiek Construction
Company in his suit alleging that he was discharged in violation of Title VII of
the Civil Rights Act of 1964 and 42 U.S.C. § 1981a because he is African-
American. He challenges the weight of the evidence against him, the exclusion
of certain testimony, and certain jury instructions. We hold that the district
court committed no error and AFFIRM.
I.
Price was hired as a carpenter by Rosiek Construction Company in
January 2003. Price testified that Richard Dehart, his immediate supervisor,
treated him a in discriminatory manner because he is African-American. Price
No. 06-41304
testified that Dehart made inappropriate comments and jokes and rebuffed
Price's complaints. Price also testified that other employees drew threatening
pictures and that he was not assigned an assistant, as other carpenters were.
In March 2003, Price's hourly pay was reduced by one dollar. Charles
Smith, a superintendent on the construction project, testified that he reduced
Price's pay because he had received complaints about Price's low productivity.
Price initially quit his job after his pay was reduced. Smith testified that he
recorded Price's separation from Rosiek as a "reduction in work force" so that
Price could receive unemployment benefits. Price was rehired the next day.
Steve Rosiek, the vice-president of the company, testified that, in June
2003, he observed Price goofing off and not working. Steve Rosiek instructed
Dehart to do something about the situation. Smith testified that he fired Price
that day, after Dehart recounted what Steve Rosiek had seen. Price testified
that Dehart fired him.
Price filed a complaint with the Texas Workforce Commission, alleging he
had been discharged because of his race. An investigation was conducted, after
which the Commission determined that there was "cause" to believe that Price
had been discharged because of his race. The Equal Employment Opportunity
Commission (EEOC) did not disturb the finding on appeal by Rosiek. Price then
sued Rosiek in state court, and Rosiek removed the case to the federal district
court. After trial before a magistrate judge and jury, the jury returned a verdict
in favor of Rosiek, finding that Price had not shown that race was a substantial
or motivating factor in the decision to terminate his employment. The district
court entered final judgment, and Price filed this appeal.
II.
Price contends on appeal that the jury verdict in favor of Rosiek is contrary
to the weight of the evidence. Price also contends that the district court erred
by excluding testimony by his coworker, Charles Lott, concerning discriminatory
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No. 06-41304
conduct that did not involve Price. Finally, Price challenges the jury charge and
instructions, arguing that the trial court misled the jury by encouraging it to
discount certain evidence and by elevating the burden on Price and coloring his
claim negatively.
III.
A.
Price seeks a new trial on the basis that the jury verdict in favor of Rosiek
is contrary to the overwhelming weight of the evidence. The record on appeal
contains no indication that Price moved for a new trial on this basis in the
district court under Federal Rule of Civil Procedure 59 or for judgment as a
matter of law under Rule 50. He has therefore waived appellate review of the
sufficiency of the evidence. See Unitherm Food Sys. Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 404 (2006) ("[A] party is not entitled to pursue a new trial on
appeal unless that party makes an appropriate postverdict motion in the district
court.").
B.
Price contends that the trial court erred by excluding testimony of his
co-worker, Charles Lott, relating to instances of discriminatory jokes and other
discrimination that he experienced but that did not involve Price. Lott testified
before the magistrate judge that Dehart often made racially discriminatory jokes
and comments and that Lott was moved to an all African-American labor crew
from his preferable position as a skilled carpenter because of his race and
because he had asked for a raise.
After hearing Lott's testimony outside the presence of the jury, the trial
court ruled that Lott's testimony that he was subjected to racial slurs and jokes
or other discrimination in the workplace was not relevant to Price's treatment.
Because Lott was not fired by Dehart and because Price's case was not brought
on the theory that Rosiek created a hostile work environment, the court found
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No. 06-41304
that Lott’s testimony was not relevant to the issue of whether Price's discharge
was racially motivated. The trial court found that, to the extent that Lott's
testimony was marginally relevant, its relevance would be outweighed by its
prejudicial effect. Lott was allowed to testify about any discriminatory conduct
he witnessed that was directed at Price. Price argues that Lott's testimony is
relevant to show a climate of discrimination created by Price's supervisor.
We review a trial court's evidentiary ruling for an abuse of discretion.
Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir. 2007). "If we find
that an abuse of discretion has occurred, we then apply the harmless error
doctrine. Thus, the evidentiary ruling will be affirmed unless the district court
abused its discretion and a substantial right of the complaining party was
affected." Id. (internal footnote omitted) "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." Kelly v. Boeing
Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995) (internal quotation
marks omitted).
We do not think the court erred in its evidentiary ruling. However,
assuming the trial court abused its discretion by excluding Lott's testimony,
Price has not shown that admitting it would have altered the outcome of this
case. The testimony that Lott would have offered did not bear on Rosiek's
decision to discharge Price. The excluded testimony would have presented
additional evidence that Price's supervisor, Dehart, told racially discriminatory
jokes and uttered racial slurs in the workplace. When asked upon direct
examination before the magistrate judge, however, Lott was unable to give
specific examples of the jokes and comments he experienced. Lott testified
before the magistrate judge that he was placed on an all-black crew because of
his race and because he asked for a raise, but he also testified that he was never
demoted but was given two pay raises while working at Rosiek. In addition,
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No. 06-41304
Rosiek presented evidence showing that Price was rehired after his first
separation with the company and showing a plausible non-discriminatory
motivation for his discharge. Because of the limited similarity between Lott's
situation and Price's situation and the evidence in favor of Rosiek, the exclusion
of Lott's testimony, even if admissible, could have no more than a slight effect
on the jury's verdict. In any event, the trial court did not commit error by
excluding it.
C.
Finally, Price contends that the trial court erred in submitting certain jury
instructions. “We review an error in jury instructions for abuse of discretion.
A challenge to jury instructions must demonstrate that the charge as a whole
creates substantial and ineradicable doubt whether the jury has been properly
guided in its deliberations. . . . Even if the challenger proves the instructions
misguided the jury, we reverse only if the erroneous instruction affected the
outcome of the case.” Thomas v. Tex. Dept. of Criminal Justice, 297 F.3d 361,
365 (5th Cir. 2002) (citations and quotation omitted).
Price contends that the trial court erred by instructing the jury that any
finding or determination of the EEOC that discrimination occurred or that it
could not find sufficient evidence of discrimination “is not dispositive of whether
discrimination occurred." The court further instructed:
The findings or determinations of the EEOC are therefore not
binding on the trier of fact. You may, but are not required, to accept
the findings in the EEOC reports. The reports do not relieve you of
your obligation to review all of the evidence in the case and to make
your decisions based on the facts as you read them.
Price concedes that the instruction arguably contains correct statements of law,
but contends that the trial court erred in its wording of the instruction because
it singled out the EEOC report for special inattention by the jury.
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No. 06-41304
Price also contends that the district court erred by instructing the jury
that
Title VII does not shield against harsh treatment in the workplace.
Nor does the statute require the employer to have good cause for its
decisions. Title VII is not a vehicle for second-guessing business
decisions. The employer may take adverse action against an
employee for a good reason, a bad reason, a reason based on
erroneous facts, or no reason at all, so long as its action is not for a
discriminatory reason.
Price argues that the trial court's instruction elevates the burden on the plaintiff
to establish liability.
We hold that the trial court did not commit reversible error by giving the
above jury instructions.
The trial court's instruction regarding the binding effect of the EEOC's
findings was not an abuse of discretion. The instruction correctly stated the law
regarding the probative value of an EEOC determination. See McClure v. Mexia
Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir. 1985) (holding that circuit
precedent that “EEOC determinations and findings of fact, although not binding
on the trier of fact, are admissible as evidence in civil proceedings as probative
of a claim of employment discrimination” applies in jury trials). We have held
that the trial court has discretion to exclude an EEOC report altogether if
prejudice or other considerations outweigh its probative value. Cortes v. Maxus
Exploration Co., 977 F.2d 195, 201-02 (5th Cir. 1992). Because the trial court's
instruction did not misrepresent the binding effect or probative value of the
EEOC's findings and determinations, we conclude that the court did not abuse
its discretion by providing a cautionary instruction.
We also hold the district court did not abuse its discretion in its instruction
to the jury regarding Title VII. The jury instructions, taken as a whole, did not
misguide the jury regarding Price's burden as a Title VII plaintiff. The trial
court's instruction on Title VII, as a whole, adequately explained that Title VII
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No. 06-41304
protects against racially discriminatory treatment and appropriately stated the
burden on the plaintiff to show that race was a motivating factor in the decision
to discharge him. See, e.g., Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th. Cir
2007) (stating that plaintiff's burden in a Title VII case, after employer has
produced evidence of a nondiscriminatory motivation, is to establish either that
employer's proffered reason for discharge is a pretext for discrimination or that
the employer's reason, while true, is not the only reason for its conduct, and
another motivating factor was plaintiff's protected characteristic). The
instruction did not, therefore, misguide the jury, and the court did not commit
error in its instructions to the jury regarding the EEOC reports or Price's burden
of proof.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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