Keisa J. Perry v. Alabama Alcoholic Beverage Control Board

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15684
________________________
D.C. Docket No. 2:11-cv-00464-JZ-WC
KESIA J. PERRY,
Plaintiff-Appellant,
VALENCIA AARON, et al.,
Plaintiffs,
versus
ALABAMA BEVERAGE CONTROL BOARD, et al.,
Defendants,
ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(September 11, 2019)
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Before ROSENBAUM, BRANCH, and DUBINA, Circuit Judges.
PER CURIAM:
Kesia Perry sued her employer, the Alabama Alcoholic Beverage Control
Board (“ABC Board”), bringing claims of race discrimination, hostile work
environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. The ABC Board filed a motion for summary judgment,
which was granted by the district court. Perry appealed and, in Perry v. Rogers,
627 F. App’x 823 (11th Cir. 2015) (per curiam) (“Perry I”), this Court reversed
and remanded Perry’s retaliation claim. Perry’s retaliation claim then proceeded to
trial, where a jury returned a verdict in favor of the ABC Board. Perry now
appeals the jury’s verdict, arguing that the district court misapplied the Perry I
mandate by instructing the jury that Perry’s suspension and nondisciplinary
counselings were not adverse employment actions and could not form the basis for
the verdict. Perry also argues that the district court made several erroneous
evidentiary rulings that, due to their cumulative prejudicial impact on her case,
demand reversal and a new trial.
Because the district court’s jury instructions correctly applied the mandate
issued by this Court in Perry I and because we can discern no abuse of its
discretion in the district court’s evidentiary rulings, we affirm.
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I. FACTS1
In Perry I, this Court affirmed the dismissal of Perry’s racially hostile work
environment claims. 627 F. App’x at 837. Thus, the sole claim before the district
court for trial was Perry’s Title VII retaliation claim. Id. at 834. Prior to trial, the
ABC Board filed a motion in limine to exclude any evidence or argument
“regarding or relating to claims which have been dismissed” as such evidence
would be prejudicial, irrelevant, confusing to the jury, and a waste of time. The
ABC Board also offered to stipulate to the first element of Perry’s retaliation
claim, “that Perry engaged in protected activity by filing a lawsuit in which she
alleged a violation of Title VII, . . . [and] . . . that her belief that she was entitled to
engage in that protected activity was a good faith belief.” But Perry refused to
accept the stipulation. In considering the ABC Board’s motion in limine, the
district court weighed the probative value of the evidence related to Perry’s
dismissed claims with the potential for prejudice and confusion under Federal Rule
of Evidence 403.2 It concluded that the ABC Board’s stipulation was necessary,
and agreed with the ABC Board that allowing Perry to present evidence of the
basis for her dismissed claims would be unfairly prejudicial to the ABC Board and
1
Because we write for the parties, we assume familiarity with the facts laid out in Perry I, 627 F.
App’x at 825–830, and include only the relevant facts from Perry’s trial.
2
Under Rule 403, “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
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potentially confusing to the jury. The court further explained that Perry would be
able to present evidence of the allegations in her Complaint—but not additional
evidence of underlying conduct that formed the basis for her dismissed claims, to
the extent the conduct was not already alleged in the Complaint itself. In order to
mitigate the potential for confusion or unfair prejudice, the court allowed ABC to
introduce evidence establishing that Perry’s other claims had been dismissed.
A jury trial was held on November 27–30, 2017. At the beginning of the
trial, the district court instructed the jury on the elements of the retaliation claim as
follows:
To succeed on this retaliation claim, Perry must prove each of the
following elements by a preponderance of the evidence: one, she
engaged in a protected activity, namely, her June 2011 lawsuit; two,
ABC took an adverse employment action against her; three, ABC took
this action because of her June 2011 lawsuit; and four, she suffered
damages because of the adverse employment action.
The district court then told the jury that the ABC Board agreed “that Perry engaged
in a protected activity when she filed a lawsuit against ABC in June 2011,” and
had stipulated to the first element. Because the ABC Board had stipulated to the
first element of Perry’s retaliation claim, the jury was told to regard that element as
having been “conclusively proved without the need for further evidence.”
Prior to the jury’s deliberation, the district court judge reminded the jury that
Perry claimed that the ABC Board “retaliated against her because she took steps to
enforce her lawful rights under Title VII of the Civil Rights Act of 1964 by filing
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this lawsuit. [She] claims [the ABC Board] retaliated against her by assigning her
to a new supervisor, Andy Knight, who unfairly scrutinized and disciplined her.
[The ABC Board] denies [Perry’s] claim, saying it acted for legitimate reasons.”
The judge then charged the jury with deciding whether the ABC Board “took an
adverse employment action against [Perry] by assigning her to a new supervisor
who unfairly scrutinized and disciplined her. . . . [and] whether [the ABC Board]
subjected [Perry] to abnormal monitoring or discipline.” The judge also instructed
the jury as follows:
You have heard testimony about a variety of allegations related to
events and actions that took place before plaintiff filed this lawsuit in
June 2011. As I cautioned you at the beginning of the case, you may
consider this information only as context for the retaliation claim
before you today.
I will remind you of my earlier instruction. You are not here to decide
whether defendant discriminated against plaintiff, subjected her to a
hostile work environment based on her race, or retaliated against her
before June 2011. Those claims are not before you, and plaintiff is
not required to prove that defendant actually discriminated against
her. Your job is limited to deciding whether defendant retaliated
against her for filing this lawsuit.
I instruct you as a matter of law that the following are not adverse
employment actions: events or actions before June 2011,
nondisciplinary counselings, and the [] January 2012 suspension.
These actions may not form the basis for your verdict in this case.
On November 30, 2017, the jury returned a verdict in favor of the ABC Board.
Final judgment was entered in favor of the ABC Board on December 11, 2017, and
Perry timely appealed.
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II. STANDARD OF REVIEW
“The mandate rule is a specific application of the ‘law of the case’ doctrine
which provides that subsequent courts are bound by any findings of fact or
conclusions of law made by the court of appeals in a prior appeal of the same
case.” Friedman v. Mkt. St. Mortg. Corp., 520 F.3d 1289, 1294 (11th Cir. 2008)
(internal citations and quotation marks omitted). “The law of the case doctrine and
the mandate rule ban courts from revisiting matters decided expressly or by
necessary implication in an earlier appeal of the same case.” AIG Baker Sterling
Heights, LLC v. Am. Multi-Cinema, Inc., 579 F.3d 1268, 1270–71 (11th Cir. 2009).
“Needless to say . . ., a district court cannot amend, alter, or refuse to apply an
appellate court’s mandate. . . . [T]he mandate must be followed.” Winn-Dixie
Stores, Inc. v. Dolgencorp, LLC, 881 F.3d 835, 844 (11th Cir. 2018).
But this Court will not “nitpick the [jury] instructions for minor defects.”
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1283 (11th Cir. 2008). “A
trial court is given wide discretion as to the style and wording of jury instructions,
and on appeal we review the court’s instructions only to determine that they show
no tendency to confuse or to mislead the jury with respect to the applicable
principles of law.” Samples v. City of Atlanta, 916 F.2d 1548, 1550 (11th Cir.
1990) (internal quotation marks and citation omitted). “[I]f the jury charge as a
whole correctly instructs the jury, even if it is technically imperfect, no reversible
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error has been committed.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th
Cir. 1996)).
“We review the evidentiary rulings of the district court for a clear abuse of
discretion.” United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002). We
will only grant a reversal if a party has established that “(1) its claim was
adequately preserved; (2) the district court abused its discretion in interpreting or
applying an evidentiary rule; and (3) this error affected ‘a substantial right.’”
Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349 (11th Cir. 2007) (quoting
United States v. Stephens, 365 F.3d 967, 974 (11th Cir. 2004) (quoting Fed. R.
Evid. 103(a))).
III. DISCUSSION
Perry raises two issues on appeal. She argues that the district court did not
follow the Perry I mandate and improperly instructed the jury that Perry’s
suspension and nondisciplinary counselings were not adverse employment actions
and could not form the basis for the verdict. She also argues that the district court
committed several evidentiary errors which, under the cumulative-error doctrine,
materially prejudiced Perry and require a new trial.
a. Jury Instructions
Perry argues that the district court failed to follow the Perry I mandate by
giving improper instructions to the jury that Perry’s suspension and
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nondisciplinary counselings were not adverse employment actions and could not be
considered when rendering the verdict. We disagree.
In particular, Perry takes issue with the charge that instructed the jury that,
as a matter of law, “the following are not adverse employment actions: events or
actions before June 2011, nondisciplinary counselings, and the [] January 2012
suspension. These actions may not form the basis for your verdict in this case.” In
order to determine whether the district court complied with this Court’s mandate in
Perry I, we begin with the relevant portion of this Court’s opinion in Perry I:
Perry contends that her placement under Knight’s supervision and his
subsequent close monitoring and disciplinary decisions constituted an
act of retaliation for filing her lawsuit. Perry filed her lawsuit on June
14, 2011, and Goolsby assigned Knight as her supervisor the
following month—in July 2011—even though Knight had not
supervised anyone for several years. . . .
During his tenure as Perry’s supervisor, Knight counseled Perry about
punctuality, cooperation with coworkers, and compliance with the
ABC Board’s rules. Perry also received two disciplinary actions—a
written reprimand for tardiness and insubordination and a suspension
for violating leave policies and procedures. Both of these acts
constitute materially adverse actions. And, because Goolsby placed
Perry under Knight’s supervision the month after she filed her lawsuit,
a reasonable jury could find that the causation element is met. While
we recognize that the ABC Board claims that it decided to have
Knight supervise Perry to place a “buffer” between Goolsby—a
person who was named as an individual defendant in the case—and
Perry, it is also plausible that the ABC Board did so to have Knight
further scrutinize Perry’s actions.
Further, although a jury might find that the ABC Board had legitimate
reasons for disciplining Perry, it might also find that Perry adequately
rebutted these reasons by offering the testimony of Knight. . . .
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Taking the facts in the light most favorable to Perry, we find that a
genuine issue of material fact exists as to whether the ABC retaliated
against Perry after she filed her lawsuit. Based on the close temporal
proximity between the filing of Perry’s complaint and the subsequent
disciplinary activity, a reasonable jury could conclude that Perry
would not have been closely watched and then disciplined by Knight
in the absence of her protected activity. Accordingly, we reverse and
remand with respect to Perry’s retaliation claim.
Perry I, 627 F. App’x at 833–34 (emphasis added) (citation omitted). We
otherwise affirmed the district court. See id. at 842.
Our examination of the district court’s jury instructions convinces us that the
district court did not amend, alter, or refuse to apply this Court’s mandate in Perry
I. The district court instructed the jury to decide whether the ABC Board “took an
adverse employment action against [Perry] by assigning her to a new supervisor
who unfairly scrutinized and disciplined her. . . . [and] whether [the ABC Board]
subjected [Perry] to abnormal monitoring or discipline.” Although this articulation
of the retaliation claim does not quote Perry I verbatim, 3 it aligns with Perry I’s
reasoning that “a reasonable jury could conclude that Perry would not have been
closely watched and then disciplined” if Perry had not filed her lawsuit against the
ABC Board. Id. at 834. Put differently, the Perry I opinion signaled that Perry’s
3
The district court was not, of course, required to present the issue to the jury using the same
phrasing as the Perry I court. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th
Cir. 2008) (“[T]he district court is given wide discretion as to the style and wording employed in
the instructions.”).
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retaliation claim turned entirely on whether the close supervision instituted by the
ABC Board and the subsequent discipline would not have otherwise occurred but
for Perry filing her lawsuit. Nothing in the district court’s instructions runs afoul
of this proposition.
We recognize that suspensions may normally be considered to be adverse
employment actions. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 920 (11th
Cir. 1993). And we do not foreclose the possibility that, depending on the
circumstances, nondisciplinary counselings could be considered to be adverse
employment actions as well. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (plaintiff must show that a reasonable employee would have found
the challenged action materially adverse). Despite this backdrop, and for the
reasons set forth in our decision in Perry I, the district court did not err when it
instructed the jury that the two actions were not, in and of themselves on this
record, adverse employment actions. Our decision in Perry I very clearly stated
that because Perry did not argue to the district court that her suspension was an act
of retaliation, the issue was waived. See Perry I, 627 F. App’x at 833. As for the
nondisciplinary counselings, Perry I addressed at least one such instance, finding
that it did not constitute an adverse employment action. Id. at 832. As for any
other counselings, the jury instructions, taken as a whole, conveyed the idea
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(consistent with Perry I) that, on the record here, the nondisciplinary counselings
that occurred in this case could not, in and of themselves, constitute retaliation.
As for the portion of the instruction that informed the jury that the
suspension and nondisciplinary counselings “may not form the basis of your
verdict in this case[,]” Perry argues that this conveyed the idea that the actions
could not be considered at all. We disagree. Perhaps in isolation, the statement
may have conveyed to the jury the idea that it could not consider the suspension or
nondisciplinary counselings at all. But in the context of the instructions as a
whole, it did not. Again, the district court charged the jury with deciding whether
the ABC Board “took an adverse employment action against [Perry] by assigning
her to a new supervisor who unfairly scrutinized and disciplined her . . . . [and
whether [the ABC Board] subjected [Perry] to abnormal monitoring or discipline.”
This charge adequately conveyed the idea that the two types of actions could be
considered by the jury in rendering their verdict—that is, the jury could consider
whether the suspension and nondisciplinary counselings occurred only because
Perry was being unfairly scrutinized; the suspension and nondisciplinary
counselings just could not—on their own—form the basis of a retaliation award.
Thus, the district court correctly applied Perry I and, in doing so, properly
instructed the jury to decide whether an adverse employment action occurred when
Perry was assigned to a new supervisor who scrutinized and disciplined her after
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she filed her lawsuit in June 2014. And since the jury charge as a whole correctly
instructed the jury, we find no reversible error. See Bateman, 79 F.3d at 1543.
b. Evidentiary Rulings
Perry complains of three evidentiary rulings that she believes “prejudiced”
her. First, Perry argues that the district court erroneously allowed the ABC Board
to stipulate to the first element of her Title VII retaliation claim and further erred
by allowing the ABC Board to question her about her dismissed claims. Second,
Perry argues that the district court improperly prevented her from mentioning her
January 2012 suspension in the context of retaliation. Third, Perry argues that
“[t]he total effect of the district court’s errors was to materially prejudice Perry,”
such that she is entitled to a new trial.
Before we begin, we note that deference is the hallmark of our abuse-of-
discretion review, and “requires that we not reverse an evidentiary decision of a
district court unless the ruling is manifestly erroneous.” United States v. Frazier,
387 F.3d 1244, 1258 (11th Cir. 2004) (citations and quotation marks omitted).
“The resolution of these questions lies within the sound discretion of the trial
judge,” United States v. Benton, 637 F.2d 1052, 1056 (5th Cir. 1981), and it is
“axiomatic that a district court enjoys ‘considerable leeway’ in making
[evidentiary] determinations.” Frazier, 387 F.3d at 1258 (citation omitted).
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We first consider the issue regarding the stipulation and evidence of Perry’s
dismissed claims. Perry argues that the district court’s acceptance of the ABC
Board’s stipulation to the first element of Perry’s retaliation claim “was prejudicial
to Perry.” She also complains that the district court erred by allowing the ABC
Board to question her about the dismissed claims—but not allowing her counsel to
pursue the same line of questioning on redirect.
Here, the district court concluded that ABC’s stipulation was necessary. It
also concluded that allowing Perry to present evidence related to her dismissed
claims would unfairly prejudice the ABC Board and be potentially confusing to the
jury. The court allowed the ABC Board to introduce evidence that Perry’s other
claims had been dismissed in order to mitigate the risk of prejudice and confusion.
Because the district court’s rulings on the stipulation and dismissed claims were
made under Rule 403, we review those determinations “for a clear abuse of
discretion.” Tinoco, 304 F.3d at 1120.
With respect to the ABC Board’s stipulation, it is not uncommon for parties
to stipulate to an element of a claim, even in discrimination cases. See, e.g.,
Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (“The employee
belongs to a protected group. As in other cases of sexual discrimination, this
requires a simple stipulation that the employee is a man or a woman.”). And Perry
does not argue that the court mistakenly determined that the stipulation would
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prevent confusion. Nor does she argue that the district court wrongly calculated
that the evidence of her dismissed claims would be unfairly prejudicial to the ABC
Board. Likewise, she fails to challenge the district court’s reasoning that the ABC
Board should have been permitted to introduce evidence of the fact that Perry’s
other claims had been dismissed in order to mitigate any risk of unfair prejudice
and jury confusion. Instead, Perry’s only argument on appeal is that the “district
court’s rulings with regard to the stipulation and the questioning of Perry with
regard to her dismissed claims was prejudicial.” This argument is woefully
inadequate to establish reversible error. Because Perry has not established that the
district court struck the wrong Rule 403 balance in its evidentiary rulings related to
the ABC Board’s stipulation and evidence of Perry’s dismissed claims, we cannot
say that the district court clearly abused its discretion.
We next consider Perry’s argument that the district court erred by
prohibiting her from mentioning her January 2012 suspension in the context of
retaliation. Perry argues that the district court’s ruling “severely hindered Perry’s
counsel during closing arguments to the prejudice of Perry.” As a threshold
matter, this single sentence is insufficient to establish any abuse of discretion by
the district court. But, even if we assume arguendo that Perry’s argument alleges a
legal error, we have already determined that the district court’s jury instruction on
this issue was directly in line with the Perry I mandate. We are bound, as the
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district court was, by the prior panel’s determination that the suspension was not an
adverse employment action. Thus, we cannot say that the district court’s refusal to
let Perry mention her January 2012 suspension in the context of retaliation was an
abuse of discretion.
Before we consider Perry’s cumulative error argument, we note that Perry’s
disagreement with the district court’s evidentiary rulings is basically just a list of
complaints—she does not cite even a single case to establish the district court’s
evidentiary rulings were erroneous. But generic complaining (i.e., “the district
court made a decision that hurt my case”) is not a valid legal argument. Perry has
not identified any legal authority that would suggest the district court committed
legal error in its evidentiary rulings and thus has failed to show that “the district
court abused its discretion in interpreting or applying an evidentiary rule.”
Proctor, 494 F.3d at 1349 (citation and quotation marks omitted). We must
conclude that the district court did not abuse its discretion.
Lastly, Perry asserts that she is entitled to a new trial under the cumulative-
error doctrine. See, e.g., United States v, Pearson, 746 F.2d 787, 796 (11th Cir.
1984). Perry argues that the total effect of the district court’s errors caused her
material prejudice, which deprived her of a fair trial. We disagree. Because Perry
has failed to establish any reversible error committed by the district court, her
demand for a new trial is without merit.
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IV. CONCLUSION
We can discern no abuse of discretion—let alone manifest error—in the
district court’s evidentiary rulings. The jury rendered its verdict in favor of the
ABC Board and, because the district court’s instructions complied with this
Court’s mandate in Perry I, we will not disturb the jury’s verdict.
The district court’s judgment is hereby
AFFIRMED.
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