Gwen Alexander v. Monsanto Company

Filing

UNPUBLISHED OPINION FILED. [09-31054 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 10/19/2010 [09-31054]

Gwen Alexander v. Monsanto Company

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Case: 09-31054

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Date Filed: 09/28/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 28, 2010 N o . 09-31054 S u m m a r y Calendar Lyle W. Cayce Clerk

G W E N ALEXANDER, P la in t iff - Appellant v. M O N S A N T O COMPANY, D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:08-CV-4196

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* P la in t iff Gwendolyn Alexander was dismissed from her employment a t a chemical plant in Louisiana owned by defendant Monsanto Co. She filed s u it against Monsanto, claiming that she was dismissed in retaliation for p r o t e c t e d activity under the Louisiana Environmental Whistleblower Statute, L a . Rev. Stat. Ann. § 30:2027. Specifically, she alleged that she had been d is m is s e d in retaliation for communicating with other employees about her

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

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No. 09-31054 r e a s o n a b le , albeit erroneous, belief that a chemical spill had taken place that w a s legally required to be reported to state or federal authorities. Alexander s u b s e q u e n t ly amended her complaint to additionally allege that she was d is m is s e d because of her race, in violation of Title VII of the Civil Rights Act of 1 9 6 4 and 42 U.S.C. § 1981. The case went to trial and a jury ruled in Monsanto's fa v o r . The district court accordingly entered judgment for Monsanto, and we n o w affirm the district court's judgment. A le x a n d e r raises four issues on appeal. First, she claims that counsel for M o n s a n t o misstated the plaintiff's burden of proof under Title VII during closing a r g u m e n t . Second, she claims that Monsanto's counsel also misstated various fa c t s during closing argument. Third, she claims that during voir dire,

M o n s a n t o 's counsel asked questions and made remarks that misled and p r e ju d ic e d prospective jurors. Fourth, she claims that the district court erred b y excluding certain evidence and testimony. A s to the claim that Monsanto's counsel misstated the law during closing a r g u m e n t , the applicable standard of review is plain error because no objection w a s made. See Alaniz v. Zamora-Quezada, 591 F.3d 761, 776 (5th Cir. 2009). "Reversal is appropriate if the error is (1) plain, (2) affects the appellant's s u b s t a n t ia l rights, and (3) seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. An error is `plain' if it is clear or obvious." Id. (fo o t n o t e omitted). D u r in g closing argument, Monsanto's counsel said, "To believe Ms. A le x a n d e r 's story that she was terminated because of her race, you're going to h a v e to believe that every white manager in the room is racist. You're also going t o have to believe that all of these managers made up stories and lied about the fa c t that she was a poor performer." Alexander's counsel did not object.

Alexander now argues that these comments amounted to an incorrect statement

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No. 09-31054 o f the law because, as she puts it, "all that is required is to prove that race is `o n e ' factor." " T it le VII explicitly permits actions proceeding under a mixed-motive fr a m e w o r k ," in which "the employee concedes that discrimination was not the s o le reason for her discharge, but argues that discrimination was a motivating fa c t o r in her termination." Richardson v. Monitronics Int'l, Inc., 434 F.3d 327, 3 3 3 (5th Cir. 2005) (citing 42 U.S.C. § 2000e-2(m)). Therefore, the statement by M o n s a n t o 's counsel was not entirely correct. In order to prevail on her

d is c r im in a t io n claim, Alexander did not have to convince the jury that every w h it e manager who had anything to do with her dismissal was racist, nor that a ll the testimony regarding her poor performance was false. She only had to c o n v in c e the jury that racial discrimination was one motivating factor in her d is m is sa l. H o w e v e r , Alexander fails to explain why this misstatement warrants r e v e r s a l under the plain error standard of review. Even if the remark was a c le a r or obvious misstatement of law, Alexander has not established that it a f f e c t e d her substantial rights -- in other words, that "it affected the outcome o f the district court proceedings." United States v. Velasquez-Torrez, 609 F.3d 7 4 3 , 746 (5th Cir. 2010). After closing arguments, the district court instructed t h e jury that "[s]tatements and arguments of the attorneys are not evidence and a r e not instructions on the law." The court then correctly and specifically

in s t r u c t e d the jury that the "[p]laintiff does not have to prove that unlawful d is c r im in a t io n was the only reason [the] defendant terminated her." Under t h e s e circumstances, it is unlikely that the jury rendered a verdict in Monsanto's fa v o r because of confusion about what Alexander was required to prove. T h e second issue raised by Alexander is that Monsanto's counsel misstated c e r t a in facts during closing argument. However, Alexander's brief fails to

in c lu d e citations to the record on appeal, and therefore provides no support for 3

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No. 09-31054 h e r assertions that the statements at issue were factually incorrect. "Not

s u r p r is in g ly , the Federal Rules of Appellate Procedure require that appellants, r a t h e r than the courts of appeals, ferret out and articulate the record evidence c o n s id e r e d material to each legal theory advanced on appeal." Conto v. Concord H o s p ., Inc., 265 F.3d 79, 81 (1st Cir. 2001). See Fed. R. App. P. 28(a)(9)(A); 5th C ir . R. 28.2.2. As a result, this issue is waived. Alexander's third argument is that Monsanto's counsel engaged in m is le a d in g and prejudicial lines of questioning when speaking to prospective ju r o r s during voir dire. This issue is again subject to plain error review because A le x a n d e r 's counsel did not object to any of the remarks. During voir dire, counsel for Monsanto asked prospective jurors several h y p o t h e t ic a l questions such as, "[If] somebody told you just because you are w h it e and because you live here that they considered you a racist, would you find t h a t offensive?" These rather inflammatory questions were apparently intended t o imply that Alexander believed that all white people from southeastern L o u is ia n a are racist. On appeal, Monsanto defends this line of questioning, c o n t e n d in g that it was "legitimately based on Alexander's deposition testimony" b e c a u s e she had "testified at her deposition that she believed all people in South L o u is ia n a were racist" and therefore "[c]ounsel anticipated Alexander would t e s t ify similarly on cross-examination at trial." However, the record does not s u p p o r t Monsanto's assertion that Alexander ever said that all people, or all w h it e people, in southern Louisiana were racist. At most, she stated in her d e p o s it io n that, compared to Chicago, "Louisiana would have a culture that le a n s more toward" racism. Therefore, Monsanto's counsel's implication that A le x a n d e r believed that all white people from southeastern Louisiana are racist w a s inaccurate and unwarranted. N o n e t h e le s s , under plain error review, Alexander has not shown that t h e s e questions during voir dire affected her substantial rights. At trial, counsel 4

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No. 09-31054 f o r Monsanto cross-examined Alexander regarding her beliefs about racism. (Alexander does not argue on appeal that this line of questioning during crosse x a m in a t io n was improper.) Counsel said to Alexander, "[Y]ou claimed that in t h is area of the country, southeast Louisiana, that people who live here have a `p r o b le m ' with African Americans." Alexander answered, "I absolutely did not s a y that." She explained that she believed that "there is a percentage of the p o p u la tio n . . . who have racist hearts" in southeastern Louisiana and in other p la c e s . Insofar as the jury may have considered Alexander's general beliefs a b o u t racism in southeastern Louisiana to be relevant to their decision at all, t h e y had the opportunity to hear her testimony and to take that into account in t h e ir deliberations. Therefore, Alexander has not shown that counsel's earlier h y p o t h e t ic a l questions about racism during voir dire affected the outcome of the t r ia l, as required under plain error review. A le x a n d e r also claims that during voir dire, Monsanto's counsel misled p o t e n t ia l jurors regarding the Louisiana Environmental Whistleblower Statute, L a . Rev. Stat. Ann. § 30:2027. Counsel asked prospective jurors several

q u e s t io n s regarding the difference between ordinary and legal definitions of the t e r m "whistleblower" and whether they believed that all chemical spills should b e reported to the government regardless of the size of the spill or the toxicity o f the chemical. Alexander's appellate brief fails to explain how any of these q u e s t io n s were misleading as to the whistleblower statute's requirements or as t o whether Alexander fulfilled those requirements. Therefore, this issue is w a iv e d . N e x t , Alexander claims that Monsanto's counsel misled prospective jurors r e g a r d in g a "performance improvement plan" which, according to Alexander, n e v e r existed. Counsel stated during voir dire that "Monsanto, my client, it's t h e ir position that Ms. Alexander had several performance problems, they would p u t her on performance improvement plans and that she, in fact, failed to 5

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No. 09-31054 im p r o v e her performance and that's why she was terminated." This statement w a s not misleading: it was an accurate description of the version of the facts that w a s put forward by Monsanto's witnesses. Alexander had a different version of t h e facts, but there was nothing misleading about this statement by counsel at v o ir dire. It did not amount to error, plain or otherwise. F in a lly , Alexander contends that the district court erred by excluding c e r t a in documentary evidence and testimony. However, this set of arguments is unavailing because Alexander does not appear to have made any offers of p r o o f regarding the excluded evidence and testimony, as required under Fed. R. E v id . 103(a)(2). "[T]his circuit will not even consider the propriety of the

d e c is io n to exclude the evidence at issue, if no offer of proof was made at trial." United States v. Clements, 73 F.3d 1330, 1336 (5th Cir. 1996) (alteration in o r ig in a l) (quoting United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979)) (in t e r n a l quotation marks omitted). "Although a formal offer is not required to p r e s e r v e error, the party must at least inform the trial court `what counsel in t e n d s to show by the evidence and why it should be admitted.'" Id. (quoting U n ite d States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994)). Alexander's

a p p e lla te brief does not mention any offers of proof, and does not cite to any p a g e s of the record on appeal that might indicate that offers of proof were ever m a d e regarding the excluded evidence and testimony. Therefore, this argument is waived. F o r the foregoing reasons, the judgment of the district court is A F F IR M E D .

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