Perez-Tatem v. England

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2217
MILAGROS PEREZ-TATEM,
Plaintiff - Appellant,
versus
GORDON ENGLAND, Secretary Department of Navy,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (1:05-cv-00450-LDW)
Submitted: September 26, 2007 Decided: October 11, 2007
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nathaniel D. Johnson, THE LAW FIRM OF NATHANIEL D. JOHNSON,
Waldorf, Maryland, for Appellant. Chuck Rosenberg, United States
Attorney, Kevin J. Mikolashek, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Milagros Perez-Tatem (“Tatem”) appeals the district
court’s denial of her motion for a new trial, challenging the
jury’s verdict in favor of her employer, the United States Navy
(“the Secretary”). Tatem contends the district court abused its
discretion in refusing to give a mixed-motive instruction she
proposed. For the reasons that follow, we affirm.
We review challenges to jury instructions for an abuse of
discretion. South Atlantic Ltd. P’ship v. Riese, 284 F.3d 518, 530
(4th Cir. 2002). Instructions will be considered “adequate if
‘construed as a whole, and in light of the whole record, [they]
adequately [inform] the jury of the controlling legal principles
without misleading or confusing the jury to the prejudice of the
objecting party.’” Id. (quoting Spell v. McDaniel, 824 F.2d 1380,
1395 (4th Cir. 1987)). If this court finds the instructions
flawed, it will not reverse “unless the error seriously prejudiced
the challenging party’s case.” Id. (citation omitted).
Tatem proposed an instruction stating, “there must be
competent evidence that the alleged retaliatory motive played a
part in the adverse employment actions alleged.” The instructions
provided to the jury stated that the jury had to “decide whether
the plaintiff has proven by a preponderance of the evidence that
the defendant has intentionally retaliated against her when she was
not promoted to the GS-12 level in July of 2003.” The instructions
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also stated that Tatem was “not required to produce direct evidence
of retaliation. Intentional retaliation may be inferred from the
existence of other facts.”
Tatem waived her opportunity to propose a mixed-motive
instruction by failing to timely file instructions in accordance
with the Eastern District of Virginia’s Local Rule 51 (“in all
cases tried to a jury the parties shall submit proposed
instructions . . . at least five (5) business days before the
scheduled trial date.”). Tatem filed proposed instructions on
March 22, 2005, three business days before trial. We cannot
conclude the district court clearly abused its discretion in
determining that Tatem’s proposed instructions were untimely and
rejecting the instruction on that basis. See Ardrey v. United
Parcel Service, 798 F.2d 679, 682 (4th Cir. 1986).
Furthermore, the facts here are unlike those in
Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 192 n.3 (4th Cir.
2003), where the district court instructed the jury that it had to
conclude gender was the “determinative factor” in the decision not
to promote and unless gender and gender alone were the basis for
the decision, the plaintiff could not recover. In Rowland, the
court’s misleading instruction seriously prejudiced the plaintiff’s
case in the face of evidence that the supervisor who had the
authority to promote the plaintiff allegedly admitted that he “just
[didn’t] need another woman in this position” and evidence that
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another female superior confirmed that gender was the reason for
the plaintiff’s lack of promotion. Rowland, 340 F.3d at 193-94.
In contrast, the instructions given by the court in this case did
not suggest that retaliation had to be the determinative or
exclusive factor in the decision not to promote.
We also reject Tatem’s argument that the instruction was
mandated by the court’s ruling on summary judgment. In its ruling
on summary judgment, the court merely concluded that the jury
should be allowed to consider Tatem’s supervisor’s alleged comments
and determine whether those statements amounted to evidence that
the supervisor retaliated against Tatem when she did not promote
her several months later. The court did not rule, nor could it
have ruled at the summary judgment stage, on the applicability of
specific jury instructions.
Accordingly, we affirm the district court’s order denying
Tatem’s motion for a new trial. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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