Earaton Adams v. Austal, USA, LLC ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 12-12182
__________________________
D.C. Docket No. 1:08-cv-00155-KD-N
EARATON ADAMS,
MYRON BARNES,
JERMEL MATTHEWS,
JERMAINE ROBERSON,
CHARLES L. STILLS, III,
BEVERLY THOMAS,
GEORGE WELLS,
CARLOS JOHNSON,
Plaintiffs-Appellants,
ROBERT ADAMS, et al.,
Plaintiffs,
versus
AUSTAL, U.S.A., L.L.C.,
Defendant-Appellee.
__________________________
Appeals from the United States District Court
for the Southern District of Alabama
__________________________
(June 17, 2014)
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Before PRYOR and COX, Circuit Judges, and ROSENTHAL, * District Judge.
PER CURIAM:
Twenty-three current and past employees filed suit against Austal USA,
LLC (“Austal”) alleging—among other claims—that Austal discriminated against
them in violation of Title VII by creating a racially hostile work environment.
After extensive proceedings in the district court, 1 including three trials, this case
has come before us in four different appeals, two of which are contemporaneous
with this appeal. 2 This appeal involves eight plaintiffs who appeal the verdicts in
favor of Austal from the second and third trials. The Plaintiffs raise a litany of
alleged errors. After careful consideration, and with the benefit of oral argument,
we affirm.
I. Issues Presented
The Plaintiffs present six issues for review. First, the Plaintiffs contend the
district court erred by limiting the amount of “me too” evidence they could present
in their case in chief. Second, they contend that the district court erred in denying
their motions for a new trial and judgment as a matter of law because the jury
*
Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
1
For a more extensive description of the case, see Adams et al. v. Austal USA L.L.C., No.
12-11507, __ F.3d ___ (11th Cir. June 17, 2014).
2
See Appendix I, infra for a complete chart of the various appeals arising out of this case.
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verdicts were against the great weight of the evidence. Third, they contend that the
district court erred by allowing Austal to present a Faragher defense. Fourth, they
contend that the district court erred by rejecting the Plaintiffs’ Batson challenge in
Jury Trial Three. Fifth, they contend that the district court erred by allowing
Austal to present the Johnson Recording as evidence. Sixth, they contend that the
district court erred by denying the Plaintiffs’ motion for a mistrial.
II. Standards of Review
This case implicates two standards of review. The district court’s rulings on
the evidence, new trial, Faragher defense waiver, and mistrial motions are
reviewed for an abuse of discretion. Lamonica v. Safe Hurricane Shutters, Inc.,
711 F.3d 1299, 1312 (11th Cir. 2013) (reviewing ruling motion for a new trial for
an abuse of discretion); United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir.
2012) (reviewing evidentiary rulings for an abuse of discretion); Proctor v. Fluor
Enters., Inc., 494 F.3d 1337, 1355 (11th Cir. 2007) (reviewing ruling on waiver of
an affirmative defense for an abuse of discretion); Frederick v. Kirby Tankships,
Inc., 205 F.3d 1277, 1286 (11th Cir. 2000) (reviewing ruling on motion for a
mistrial for an abuse of discretion). The district court’s ruling on the Plaintiffs’
Batson challenge is reviewed for clear error. United States v. Houston, 456 F.3d
1328, 1334 (11th Cir. 2006).
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III. Discussion
A. The district court properly limited “me too” evidence.
The Plaintiffs contend that the district court erred by precluding the
admission of “me too” evidence in their case-in-chief. We have considered a
substantially similar argument in a related opinion in this case. See Adams, et al. v.
Austal USA, L.L.C., No. 12-11507, ___ F.3d ___, Part III.B.1.a (11th Cir. June 17,
2014). For the reasons expressed in our opinion in that case, we find no error ,
much less an abuse of discretion, in the district court’s order.
B. The jury verdicts were not against the great weight of the evidence.
The Plaintiffs contend that the district court erred by denying the Plaintiffs’
motions for a new trial in Jury Trial Two and Jury Trial Three on the basis that the
jury verdicts were against the great weight of the evidence. Austal responds that
the verdicts were amply supported because of the evidence Austal presented at trial
and the Plaintiffs’ lack of credibility.
“We review a district court’s denial of a motion for a new trial for an abuse
of discretion.” Lamonica, 711 F.3d at 1312. New trials will not be granted on
evidentiary grounds unless “the verdict is against the great—not merely the
greater—weight of the evidence.” Id. at 1312–13 (citations omitted). This
standard requires a movant to show not only that some evidence opposes the
verdict, but that the evidence against the verdict greatly outweighs evidence
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supporting the verdict. Thus, in order to properly state this claim, a movant must
analyze both evidence supporting and opposing the verdict to show that the great
weight of the evidence is against the verdict.
On this appeal, the Plaintiffs make the conclusory allegation that “the jury’s
verdict as to the plaintiffs’ claims was against the great weight of the evidence,”
but the Plaintiffs fail to analyze the evidence that was presented supporting the
juries’ verdicts. Notably, the Plaintiffs argument fails to analyze either Austal’s
Faragher defense or the impeachment evidence Austal presented at trial. And, the
Plaintiffs fail to properly discuss the evidence opposing the verdict. The majority
of the Plaintiffs’ argument fails to cite to the record—in direct violation of Federal
Rules of Appellate Procedure 28(a)(9)(A) and Eleventh Circuit Rule 28-1(I).
Instead, the Plaintiffs cite as authority their own statement of the facts. We have
previously warned litigants that “failure to comply with Rule 28(a)(9)(A) of the
Federal Rules of Appellate Procedure may result in waiver or abandonment of
issues on appeal.” See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1286 n.4
(11th Cir. 2003) (citing Flanigan’s Enters., Inc. of Ga. v. Fulton Cnty., Ga., 242
F.3d 976, 987 n.16 (11th Cir. 2001)).
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Accordingly, the Plaintiffs’ violation of Rule 28(a)(9)(A) has waived this
argument. Even assuming arguendo that the argument had not been waived, we
find no merit in the Plaintiffs’ argument.
C. The District Court properly decided that the Faragher defense was not
waived.
The Plaintiffs contend that Austal waived its Faragher defense by failing to
assert the defense in its answer to the complaint. We have considered a
substantially similar argument in a related opinion in this case. See Adams et al. v.
Austal USA L.L.C., No. 12-11507, ___ F.3d ___, Part III.B.1.b (11th Cir. June 17,
2014). For the reasons expressed in that opinion, we find no error in the district
court’s order.
D. The district court did not clearly err by rejecting the Plaintiffs’ Batson
challenge.
The Plaintiffs 3 contend that Austal failed to provide a race-neutral reason for
any of its three jury strikes against African Americans in Jury Trial Three. Austal
responds that it provided legitimate, race-neutral reasons for each jury strike.
We review the district court’s decision denying a Batson challenge for clear
error. Houston, 456 F.3d at 1334. Under the Batson burden-shifting framework,
3
While all Plaintiffs appeal on this issue, the Plaintiffs’ brief specifically challenges only
the “7 Plaintiff trial,” which is Jury Trial Three. Accordingly, Plaintiff Beverly Thomas, who
was a party in Jury Trial Two, does not have standing to appeal on this issue.
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“[f]irst, the [challenger] must establish a prima facie case to raise the inference of
discriminatory intent. Once the prima facie case is established, the [striking party]
may rebut the inference by articulating legitimate, race-neutral reasons for its
exercise of its peremptory strikes. After the [striking party] articulates such
reasons, the court must evaluate the credibility of the stated justifications based on
the evidence placed before it.” Houston, 456 F.3d at 1335.
After the district court found that the Plaintiffs had made a prima facie case
suggesting discriminatory intent, Austal provided multiple race-neutral reasons for
striking the jurors. First, Austal explained that Juror 29 was struck because Juror
29: (1) was friends with Plaintiff Carolyn Slay on Facebook; (2) was a convicted
felon and refused to discuss the nature of his crime; (3) concealed information
about his employment; (4) was a defendant in child support matters which Austal
believed showed irresponsibility; and (5) worked on a dock similar to the
employment of the Plaintiffs. Second, Austal struck Juror 33 because he: (1) was a
retired pipefitter similar to the employment of the Plaintiffs; (2) was sued by
Alabama for overpayment of unemployment benefits which Austal thought
weakened its impeachment evidence; and (3) did not disclose collection actions
against him. Third, Austal struck juror 41 because: (1) she thought the employer
was obligated to guarantee a discrimination and harassment-free workplace; (2) her
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brother was convicted of murder, which Austal thought weakened its impeachment
evidence; (3) her sister had drug problems, which Austal thought weakened its
impeachment evidence; and (4) she received welfare showing that she accepted
government entitlements.
Accordingly, the Plaintiffs’ argument that Austal failed to provide any race-
neutral justifications for its preemptory challenges is meritless. The district court
did not clearly err in rejecting the Plaintiffs’ Batson challenges.
E. The district court did not err by admitting the Johnson Recording into
evidence.
The Plaintiffs contend that the district court erred by admitting the Johnson
Recording into evidence since it is substantially more prejudicial than probative.
Austal responds that this objection has been waived.
“We review the district court’s evidentiary rulings for an abuse of
discretion.” Dortch, 696 F.3d at 1110. A Rule 403 objection is only preserved if it
is timely and provides the specific grounds for objection. Wilson v. Attaway, 757
F.2d 1227, 1242 (11th Cir. 1985). While the Plaintiffs argued the Johnson
Recording required a mistrial, they never argued that the recording was
inadmissible nor that it was substantially more unfairly prejudicial than probative.
This general allegation of some problem with the proffered evidence is insufficient
to preserve a Rule 403 challenge.
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Accordingly, the Plaintiffs have waived review of this issue by failing to
timely make a specific objection.
F. The district court did not err by denying the Plaintiffs’ motion for a
mistrial.
The Plaintiffs contend that the district court should have granted their
motion for a mistrial because the district court admitted evidence allegedly
procured by an ethical violation and because Austal’s attorneys allegedly violated
the district court’s orders. 4 Austal responds that its counsel did not violate any
ethics rules or district court orders.
“We review a district court’s decision on a motion for mistrial for abuse of
discretion.” Frederick, 205 F.3d at 1285. In the Eleventh Circuit, “[a] state rule of
professional conduct cannot provide an adequate basis for a federal court to
suppress evidence that is otherwise admissible.” United States v. Lowery, 166 F.3d
1119, 1124 (11th Cir. 1999).
Since the alleged violation of a state rule of professional conduct cannot
provide an adequate basis for suppressing evidence, the district court’s decision to
allow the Johnson Recording cannot merit a mistrial. Additionally, after reviewing
4
We feel obligated to note that no evidence in the record suggests that Austal violated
any ethics rules. And, the Alabama State Bar dismissed all ethics complaints made by the
Plaintiffs’ attorneys.
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the record we find no evidence that Austal’s attorneys failed to comply with the
district court’s orders.
Accordingly, the district court did not err by denying the Plaintiffs’ motion
for a mistrial.
VI. Conclusion
We find no merit to the Plaintiffs’ contentions. Accordingly, we affirm.
AFFIRMED.
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Appendix I
Fees
Merits Case
Plaintiff Procedural Posture Trial Case on
on Appeal
Appeal
1. Earton Adams The district court denied Trial 1 & 3 12-12182 12-11983
2. Myron Barnes Austal’s summary Trial 1 & 3 12-12182 12-11983
3. Carlos Johnson judgment motion. These Trial 1 & 3 12-12182 12-11983
4. Beverly Thomas plaintiffs went to three Trial 2 12-12182 12-11983
5. Charles Stills different trials and Trial 3 12-12182 12-11983
received verdicts for
6. Jermain Roberson Austal. They moved for Trial 3 12-12182 12-11983
7. George Wells judgment as a matter of Trial 3 12-12182 12-11983
8. Jermel Matthews law or a new trial. The Trial 3 12-12182 12-11983
9. Frederick Carter motions were denied. Trial 1 12-11507 12-11983
10. Sidney Hedgeman They appeal. Trial 1 12-11507 12-11983
11. Robert Adams N/A 12-11507 12-11983
12. Nelson Bumpers N/A 12-11507 12-11983
13. Alvin
N/A 12-11507 12-11983
Cunningham
14. Tesha Hollis N/A 12-11507 12-11983
15. Ron Law The district court granted N/A 12-11507 12-11983
16. Jerome Pettibone Austal’s summary N/A 12-11507 12-11983
17. Rahman Pratt judgment motion on all N/A 12-11507 12-11983
18. Nathaniel Reed claims. These plaintiffs N/A 12-11507 12-11983
19. Carolyn Slay appeal. N/A 12-11507 12-11983
20. Franklin Thomas N/A 12-11507 12-11983
21. Frederick
N/A 12-11507 12-11983
Williams
22. Larry Laffiette N/A 12-11507 12-11983
23. Gloria Sullivan N/A 12-11507 12-11722
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