Steve Thomas v. Home Depot USA, Inc.

Filing

Opinion issued by court as to Appellant Steve L. Thomas. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-15409

Date Filed: 09/08/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15409
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-03430-AT

STEVE L. THOMAS,
Plaintiff-Appellant,
versus
HOME DEPOT USA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 8, 2016)

Before WILLIAM PRYOR, FAY, and EDMONDSON, Circuit Judges.

Case: 15-15409

Date Filed: 09/08/2016

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PER CURIAM:

This appeal is about trial by jury or by the Court and the Rules of Civil
Procedure.
Steven Thomas, proceeding pro se, appeals the district court’s entry of final
judgment in favor of Home Depot USA, Inc. (“Home Depot”), following a bench
trial on Thomas’s failure-to-hire racial discrimination claim under 42 U.S.C. §
2000e-2 (“Title VII”). Briefly stated, Thomas contends that Home Depot -- based
on Thomas’s race -- rescinded an offer of employment. On appeal, in pertinent
part, Thomas challenges the district court’s denial of a jury trial. * Reversible error
has been shown; we vacate the judgment and remand.
Thomas filed this civil action against Home Depot, alleging a violation of
Title VII. In his initial complaint -- which was filed properly with the district court
and served timely on Home Depot -- Thomas included a jury demand.
Home Depot filed a motion to dismiss Thomas’s complaint for failure to
state a claim and for failure to exhaust administrative remedies. Thereafter, the
magistrate judge granted Thomas leave to file an amended complaint. In the
amended complaint, Thomas reasserted his failure-to-hire claim against Home

*

Because we conclude that Thomas is entitled to a jury trial, we do not reach Thomas’s
arguments on appeal about the merits of his underlying Title VII claim.
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Depot, alleging more facts in support of his claim. Thomas’s amended complaint
did not repeat the jury demand.
Home Depot moved for summary judgment. The district court denied Home
Depot’s motion. In doing so, the court concluded that Home Depot had failed to
show that Thomas could establish no prima facie case of race discrimination. The
district court also concluded that sufficient circumstantial evidence existed to allow
a reasonable “jury” to find that Home Depot’s proffered legitimate nondiscriminatory reasons for rescinding Thomas’s job offer were pretextual.
Then, at a pretrial conference, the district court denied Thomas’s request for
a jury trial. The district court concluded that, although Thomas had requested a
jury trial in his original complaint, his amended complaint -- which contained no
jury demand -- superseded completely his original complaint. The district court
also explained that it was too late in the proceedings to grant an untimely request
for a jury trial and expressed concern about the difficulties a pro se plaintiff would
have representing himself adequately in front of a jury. Thomas moved for
reconsideration of the request for a jury trial; the district court denied that motion.
The district court conducted a bench trial on Thomas’s claims and entered
judgment in favor of Home Depot. The district court found and concluded that
Thomas failed to show that Home Depot’s proffered legitimate, non-discriminatory

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reason for rescinding Thomas’s job offer was a pretext for race discrimination.
This appeal followed.
We review de novo the interpretation of the Federal Rules of Civil
Procedure. We review with “exacting scrutiny” the denial of a jury trial. Mega
Life & Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1403 (11th Cir. 2009). The
right to a jury trial is fundamental, and -- although the right may be waived -- we
must “indulge every reasonable presumption against waiver.” Id. (alterations
omitted). We must vacate a judgment based upon an unconstitutional denial of a
jury trial, unless the denial constituted harmless error. LaMarca v. Turner, 995
F.2d 1526, 1544 (11th Cir. 1993).
“The right to trial by jury as declared by the Seventh Amendment to the
Constitution . . . is preserved to the parties inviolate.” Fed. R. Civ. P. 38(a). A
party wishing to assert his right to a jury trial must “demand a jury trial by (1)
serving the other parties with a written demand -- which may be included in a
pleading -- no later than 14 days after the last pleading directed to the issue is
served; and (2) filing the demand in accordance with Rule 5(d).” Fed. R. Civ. P.
38(b). A party’s failure to serve and file a jury demand in compliance with Rule
38(b) constitutes a waiver of the right to a jury trial. Fed. R. Civ. P. 38(d). Once a
demand for a jury trial has been properly served and filed, however, it “may be
withdrawn only if the parties consent.” Id. For purposes of Rule 38, the parties
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may consent by filing a stipulation to a nonjury trial or by making an oral
stipulation on the record. See Fed. R. Civ. P. 39(a)(1).
Here, Thomas included a demand for a jury trial in his original complaint.
Thomas’s jury demand was both served and filed properly, in accordance with
Rule 38(b). Thus, because Thomas’s demand for a jury trial was properly
completed, it could be withdrawn only with the consent of the parties. See Fed. R.
Civ. P. 38(d).
That Thomas later filed an amended complaint containing no jury demand
did not render invalid Thomas’s initial jury demand or withdraw it. Generally
speaking, an amended complaint supersedes the original complaint: averments
against one’s adversaries dropped from the original complaint no longer count.
Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007). A
jury demand, however -- although it may be included in a pleading -- is no element
of a complaint itself. See Fed. R. Civ. P. 8(a), 38. Most important, the ways by
which a proper jury demand, once made, may be withdrawn are governed in a case
like this one by the letter of the Federal Rules of Civil Procedure. Nothing in the
Federal Rules of Civil Procedure provides that a proper and complete jury demand
can be withdrawn by a later amended complaint totally silent on the issue of a jury
trial. Because Thomas’s amended complaint did not -- as a matter of law, could
not -- “supersede” Thomas’s earlier jury demand, and because the amended
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complaint included no consent of the parties to withdraw the earlier-made jury
demand, the district court erred in denying Thomas a jury trial.
Although unconstitutional denials of jury trials may be subject to harmless
error review, an error may be deemed harmless “only where the issues could have
been disposed of on summary judgment or judgment as a matter of law.” Burns v.
Lawther, 53 F.3d 1237, 1243 (11th Cir. 1995). Here, the district court denied
Home Depot’s motions for summary judgment and for judgment as a matter of
law. Later, when finally deciding the case’s merits, the district court weighed the
evidence introduced at trial; and the court based its decision at least in part on a
determination about the credibility of testimony. On this record, we cannot say
that the district court’s denial of a jury trial was harmless: “questions of witness
credibility are the exclusive province of the jury.” See United States v. Hernandez,
743 F.3d 812, 815 (11th Cir. 2014).
We vacate the judgment and remand for retrial before a jury.
VACATED AND REMANDED.

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