                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0514n.06

                                          No. 08-5285                                 FILED
                                                                                   Jul 27, 2009
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

KEEFE ALSOBROOK, JAY A IRVIN,                        )
JIMMY JENKINS, and HERMAN LEWIS,                     )
                                                     )
          Plaintiffs-Appellants,                     )      ON APPEAL FROM THE
                                                     )      UNITED STATES DISTRICT
v.                                                   )      COURT FOR THE WESTERN
                                                     )      DISTRICT OF TENNESSEE
UPS GROUND FREIGHT, INC.,                            )
a Virginia Corporation,                              )
                                                     )
          Defendant-Appellee.                        )


Before:         CLAY and ROGERS, Circuit Judges; JORDAN, District Judge.*

                LEON JORDAN, District Judge. Keefe Alsobrook, Jay A. Irvin, Jimmy

Jenkins, and Herman Lewis (collectively “appellants” or “plaintiffs”) appeal pro se from a

jury verdict in favor of their employer, UPS Ground Freight, Inc. (“UPS”). For the reasons

that follow, we AFFIRM the district court.

                                                I.

                Appellants filed their complaint in the district court by counsel, alleging that

UPS subjected them to disparate treatment, retaliation, and a hostile work environment in

violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §


          *
        The Honorable R. Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
2000e et seq.1 In material part, appellants alleged that they were retaliated against through

intimidation, increased responsibilities, and undesirable work assignments.

              The district court granted in part and denied in part UPS’s summary judgment

motion. Correctly citing the “reasonable employee would have found the challenged action

materially adverse” standard of Burlington Northern & Santa Fe Railway v. White, 548 U.S.

53, 68 (2006), the district court relied on the affidavit of each plaintiff in finding a genuine

issue of material fact precluding summary judgment on the retaliation claims.

              Appellants were represented by counsel from the initiation of their suit through

the conclusion of the ten-day jury trial. At trial, the district court granted in part and denied

in part UPS’s motion for judgment as a matter of law. The case went to the jury on the

retaliation and hostile work environment claims.

              In contrast to the law correctly applied in its summary judgment ruling, the

district court charged the jury in pertinent part that each plaintiff “must show that he suffered

a materially adverse change in the terms or conditions of employment because of the

employer’s actions.” This retaliation standard was specifically rejected by the Supreme Court

in Burlington Northern. Post-Burlington Northern, a plaintiff now instead “must show that

a reasonable employee would have found the challenged action materially adverse, which in

this context means it well might have dissuaded a reasonable worker from making or



        1
        The complaint was filed against appellants’ then-current employer, Overnite Transportation
Company (“Overnite”). Upon the parties’ subsequent joint motion, UPS was substituted as
defendant following its acquisition of Overnite.

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supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, 70 (citation and

quotation omitted).

              The jury returned a defense verdict on all claims. Following trial, the plaintiffs

filed a timely notice of appeal pro se.

                                               II.

              Appellants have not provided us with a trial transcript. We have before us only

the transcript of the charge conference and the jury instructions, as submitted by the appellee.

While appellants argue that their “counsel informed The District Court that she wanted the

new law [Burlington Northern] applied,” that contention is wholly unsupported by the record.

The available transcript instead makes clear that there was no objection made to the erroneous

charge. Therefore, our review is for plain error. See Fed. R. Civ. P. 51(d)(2); Bath & Body

Works v. Luzier Personalized Cosmetics, 76 F.3d 743, 750 (6th Cir. 1996).

              Plain error is a “very high standard,” Maday v. Public Libraries of Saginaw, 480

F.3d 815, 820 (6th Cir. 2007), and our review is discretionary. See Fed. R. Civ. P 51(d)(2)

(“A court may consider a plain error in the instructions that has not been preserved . . . .”)

(emphasis added); Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). “[W]e examine the

proceedings in their entirety in the light of the proofs at trial, to determine whether the errors

affected substantial rights.” Rush v. Ill. Cent. R.R., 399 F.3d 705, 715 (6th Cir. 2005)

(citation, quotation, and internal alteration omitted).       Appellants bear the burden of

establishing plain error. United States v. Olano, 507 U.S. 725, 734 (1993); Fruge v. Penrod



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Drilling Co., 918 F.2d 1163, 1169 (5th Cir. 1990) (“Plain error requires that plaintiff establish

the challenged instruction was an incorrect statement of the law and was probably responsible

for an incorrect verdict, leading to substantial injustice.”).

                                               III.

              The advisory committee notes to the 2003 amendments to Federal Rule of Civil

Procedure 51 provide,

       The court's duty to give correct jury instructions in a civil action is shaped by
       at least four factors.

       The factor most directly implied by a “plain” error rule is the obviousness of the
       mistake. The importance of the error is a second major factor. The costs of
       correcting an error reflect a third factor that is affected by a variety of
       circumstances. In a case that seems close to the fundamental error line, account
       also may be taken of the impact a verdict may have on nonparties.

Fed. R. Civ. P. 51 advisory committee’s note (2003). The notes further suggest that the plain

error standard is less likely to be met in civil cases than in criminal cases. Id. (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)) (“In exceptional circumstances, especially in

criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors

to which no exception has been taken . . . .”).

              In the present case, the error below was obvious. However, on the record before

us we cannot determine the degree of importance of that error because without a trial

transcript we cannot assess the strength of the plaintiffs’ proof. We presume that the plaintiffs

offered some evidence on their retaliation claims. Otherwise the district court likely would

not have denied the motion for judgment as a matter of law.

                                                4
               Nonetheless, we find very little insight as to the strength or focus of that proof.

The plaintiffs presumably testified at trial, but we have no record of the content or credibility

of that testimony. It is the appellants’ duty to provide us with those portions of the transcript

which they deem necessary and relevant to their issues on appeal. See Fed. R. App. P.

10(b)(1)(A), (2). Similarly, while the plaintiffs supported their opposition to summary

judgment with the affidavits of several coworkers, without a trial transcript we are left only

to speculate whether any of those persons actually testified, and what the value of any such

testimony might have been. We also note that during the charge conference, the district court

described this case as “[c]ertainly not the most egregious case we have had at all . . . .”

               In order for us to conclude that the erroneous charge impacted the appellants’

substantial rights, it is the appellants who “must demonstrate that it ‘affected the outcome of

the district court proceedings.’” Puckett, 129 S. Ct. at 1429 (quoting Olano, 507 U.S. at 734).

This is not a case with a clear indication that the jury’s verdict was related to the challenged

instruction. Cf. Reynolds v. Green, 184 F.3d 589, 595 (6th Cir. 1999) (jurors asked questions

directly relating to erroneous verdict form). The present appellants’ “case is not so strong that

we can say that had it not been for an erroneous instruction [they] would surely have prevailed

at trial.” Mesman v. Crane Pro Servs., 512 F.3d 352, 357 (7th Cir. 2008).

               Additionally, “‘the costs of correcting an error’ . . . is an important factor in this

case.” Id. (quoting Fed. R. Civ. P. 51 advisory committee’s note (2003)). We are reluctant

to require the district court to redo a two-week trial in this civil case because of a single error



                                                 5
in the jury instructions. Considerable public resources have already been devoted to resolving

this civil suit. We are also reluctant to require UPS, which proposed a correct Burlington

Northern instruction to the district court, to defend another two-week trial.

               The appellants have simply failed to meet their burden of demonstrating that the

error below seriously affected the fairness, integrity, or public reputation of this judicial

proceeding.    We are mindful that filings by pro se litigants are entitled to a liberal

construction. Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). That “less stringent

standard,” however, does not entitle pro se parties to succeed on the mere basis of conclusory

allegations and futile claims. Id. On the appellate record before us, we decline to exercise

our discretion to grant a plain error reversal.

                                                IV.

               Appellants’ remaining arguments warrant little discussion. Appellants ask us

to “disbar” the district judge and they contend that, due to the strength of their evidence

(which, again, they have not brought before us in the record on appeal) and the

“incompetency” of their trial counsel, we should “review this case for all error.”

               We do not review cases for “all error.” Rather, we consider only those issues

properly and specifically brought before us, and all other issues are deemed waived. See

Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006); McPherson v. Kelsey, 125

F.3d 989, 995-96 (6th Cir. 1997) Further, “It is well-settled that there is no constitutional or

statutory right to effective assistance of counsel in a civil case. . . . Thus, litigants in a civil



                                                  6
proceeding may not attack an adverse judgement on the grounds of ineffective assistance of

counsel. . . . Instead, the appropriate remedy is a malpractice action against the attorney.”

Adams v. Vidor, 12 F. App’x 317, 319 (6th Cir. June 11, 2001) (citations omitted). Lastly, this

court does not address the “disbarment” of district judges.

              Therefore, for the reasons provided herein, we AFFIRM the jury verdict below.




                                              7
       CLAY, Circuit Judge, dissenting. The district court’s failure to instruct the jury

correctly with respect to a critical element of Plaintiffs’ retaliation claim warrants reversal and

remand for a new trial on the issue of whether Defendant retaliated against Plaintiffs for filing

complaints of race discrimination. Although the majority acknowledges that the district

court’s inexplicable error in instructing the jury was “obvious,” it nonetheless “decline[s]” to

exercise this Court’s discretion to reverse for plain error. Because I disagree, I respectfully

dissent from the majority’s decision on this issue.

       The district court below presented the jury with an incorrect legal standard for

evaluating whether Plaintiffs experienced an adverse employment action for purposes of

Plaintiffs’ retaliation claim. In instructing the jury, the district court stated that, in order to

establish the existence of an adverse employment action, Plaintiffs had to show that they

“suffered a materially adverse change in the terms or conditions of employment because of

the employer’s actions.”      (Jury Instructions Tr. 29.)     It then provided examples of a

“materially adverse change”—termination, demotion, loss of benefits, or diminished

responsibility—all of which were “ultimate employment decisions” related to the terms and

conditions of employment.

       However, the Supreme Court has rejected a test that limits actionable retaliation claims

to cases in which the employee suffered an “ultimate employment decision.” Burlington N.

& Sante Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Instead, “a plaintiff must show that a

reasonable employee would have found the challenged action materially adverse, ‘which in



                                                8
this context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d

1211, 1219 (D.C. Cir. 2006)). The Court thus made clear that, in the context of a retaliation

case, a jury is “not required to find that the challenged actions [a]re related to the terms or

conditions of employment.” Id. at 70.

       Consequently, the district court erred in instructing the jury. Moreover, at the time the

district court instructed the jury, the applicable standard had been established by the Supreme

Court in White, and the district court’s error therefore was plain and obvious. See also Long

v. Howard Univ., 550 F.3d 21, 26 (D.C. Cir. 2008) (noting that, in the context of Rule

51(d)(2), the word “plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious’”).

       Although the majority does not disagree with the above analysis, it nonetheless allows

the district court’s mistake to go uncorrected. The majority suggests that the costs that would

result from correcting the error in this case weigh against reversing the jury verdict. However,

the committee notes to Rule 51 upon which the majority relies make clear that the obviousness

and importance of the error weigh more heavily in determining whether the district court’s

error warrants reversal in the civil context. For that matter, it is not evident from the record

that the trial on remand would be as lengthy as the original trial. The erroneous jury

instruction related only to Plaintiffs’ retaliation claim, not Plaintiffs’ claims that they were

subjected to racially motivated harassment that created a hostile work environment.




                                               9
       Here, the obviousness of the mistake—“[t]he factor most directly implied by a ‘plain’

error rule,” Fed. R. Civ. P. 51(d)(2), advisory committee note— weighs heavily in favor of

finding plain error. As discussed above, the error was plain—the district court instructed the

jury in a manner contrary to a recent, clear, and controlling Supreme Court case. Further, “a

second major factor” in addressing plain error is “[t]he importance of the error.” In this case,

the district court’s error in instructing the jury was significant. The instruction related to a

“core issue in the case”—whether the Plaintiffs suffered an adverse employment action. See

Reynolds v. Green, 184 F.3d 589, 595 (6th Cir. 1999) (providing, under the prior plain-error

standard, that the instruction must relate to a “core issue”). Based on the instructions that the

district court gave, the jury could not have found that Plaintiffs suffered an adverse

employment action—a key element of their retaliation claim. The adverse employment action

forming the basis of the retaliation claim that went to the jury was that Plaintiffs were denied

certain training opportunities, and received more difficult work assignments. Thus, the

alleged adverse employment action did not come within the standard that the court provided

to the jury—Defendant did not terminate Plaintiffs, nor did Defendant reduce their pay,

responsibilities, or benefits. The jury never considered whether Defendant’s actions in

assigning Plaintiffs more difficult work “might dissuade a reasonable worker” from making

a claim of racial discrimination. See White, 548 U.S. at 68. Accordingly, the error was plain

and prejudiced Plaintiffs, warranting reversal under the plain-error standard. As a result of

the district court’s legally deficient instructions to the jury on an issue critical to Plaintiffs’



                                                10
claims, the jury was effectively foreclosed from determining whether Plaintiffs should have

prevailed on their retaliation claim.

       In view of the importance of the adverse employment action issue to Plaintiffs’

retaliation claim, and the fact that the adverse employment action forming the basis of

Plaintiffs’ claim was not properly set forth by the erroneous standard provided by the district

court, I would remand for a new trial on the issue of retaliation. I therefore respectfully

dissent.




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