Nehan v. J.B. Hunt Transportation, Inc. , 179 F. App'x 954 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 6, 2005
Decided May 3, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1066
BEUGRE S. NEHAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 98-cv-05840
J.B. HUNT TRANSPORTATION,
INC., Wayne R. Andersen,
Defendant-Appellee. Judge.
ORDER
Beugre Nehan appeals the jury’s verdict in favor of his employer J.B. Hunt
Transportation, Inc. (“Hunt”), based solely on his argument that it is
unconstitutional per se for an all-white jury to hear a case in which a black plaintiff
alleges discrimination. The jury rejected Nehan’s claims under Title VII, 42 U.S.C.
§ 2000e et seq., and 42 U.S.C. § 1981. We affirm.
Nehan filed a complaint pursuant to Title VII and Section 1981, alleging that
Hunt discriminated against him based on his race and national origin. (Nehan is
black and a native of Cote d'Ivoire, or Ivory Coast.) The case proceeded to trial and
was heard by a jury. The record does not reflect the composition of the venire and
Nehan failed to provide us with the required transcript of the proceedings, but the
No. 05-1066 Page 2
district court commented, in its order denying Nehan’s post-trial motion challenging
the jury’s composition, that all of the jurors seated were white. Nehan simply
stated that the “panel of potential jurors was overwhelmingly white,” but he did not
order a transcript of the jury selection or trial because he “could not afford to pay
for the voluminous transcript.” The jury found in Hunt’s favor.
Following the verdict, Nehan initially challenged the composition of the jury
in a Federal Rule of Civil Procedure 50(b) post-trial motion. The motion was not
based on a Batson-type challenge to Hunt’s selection of jurors as one would expect,
see Batson v. Kentucky, 476 U.S. 79 (1986), but rather on a vague due process
argument that “there [should] be at least 25 percent representation of the race of
each significant person or party to the controversy in that final Jury makeup” when
a case involves racial discrimination. The motion failed to specify the significance
of the 25 percent figure and cited no legal authority. The district court denied the
motion, stating that Nehan had “no legal right to a jury composed of members of his
same race” and that “the jury selection process was fair” as a matter of law. The
court also observed that, while Nehan did not raise Batson as grounds for his
argument, there was “no reason to believe defense counsel used his peremptory
challenges to strike potential jurors based on their race.”
On appeal Nehan argues that the Constitution requires a “balanced panel of
jurors,” including some unspecified number of black jurors when a black plaintiff
brings a claim of discrimination. The argument, according to Nehan, stems from
his “right to a fair and impartial jury.” He does not argue that the specific jurors in
this case were biased, but rather that any all-white jury possesses an inherent bias
that makes it unqualified to judge the merits of a discrimination claim involving a
black plaintiff. He asserts that “[a]n all white jury is a humiliation and oppression
of the black plaintiff.”
Nehan’s suggestion that the composition of his venire or petit jury violated
his right to due process is without merit. Though Nehan asserts that due process
was offended because his jury was comprised solely of white jurors, the Supreme
Court has held that a defendants is not entitled to a jury composed of members of
his race. Batson, 476 U.S. at 85; see also United States v. Nururdin, 8 F.3d 1187,
1189-90 (7th Cir. 1993) (all-white jury did not violate defendant’s Fifth and Sixth
Amendment rights to impartial jury). Nehan could have challenged any
discriminatory use of peremptory challenges by Hunt during voir dire, see
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630 (1991) (“[C]ourts must
entertain a challenge to a private litigant's racially discriminatory use of
peremptory challenges in a civil trial.”); Alverio v. Sam's Warehouse Club, Inc., 253
F.3d 933, 939 (7th Cir. 2001) (observing that Batson applies to civil proceedings),
but he did not and thus has waived the claim on appeal, see Brown v. Kinney Shoe
Corp., 237 F.3d 556, 561-62 (5th Cir. 2002); McCrory v. Henderson, 82 F.3d 1243,
No. 05-1066 Page 3
1249 (2d Cir. 1996) (“[T]he failure to object to the discriminatory use of peremptory
challenges prior to the conclusion of jury selection waives the objection.”). Finally,
Nehan could have pursued a statutory challenge to the composition of his jury
under the Jury Selection and Service Act, see 28 U.S.C. § 1861 et seq., but he did
not. The Act requires a civil plaintiff to raise his challenge within 7 days of the
time he knew or should have known of the court’s failure to comply with the Act.
See id. § 1867(c), (e). Nehan’s failure to rely on the Act in the district court waives a
statutory claim on appeal. See United States v. Young, 38 F.3d 338, 342 (7th Cir.
1994); United States v. Williams, 264 F.3d 561, 586 n.3 (5th Cir. 2001).
AFFIRMED.