     Case: 09-31054     Document: 00511246432          Page: 1    Date Filed: 09/28/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                        September 28, 2010

                                     No. 09-31054                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



GWEN ALEXANDER,

                                                   Plaintiff - Appellant
v.

MONSANTO COMPANY,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:08-CV-4196


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
               Plaintiff Gwendolyn Alexander was dismissed from her employment
at a chemical plant in Louisiana owned by defendant Monsanto Co. She filed
suit against Monsanto, claiming that she was dismissed in retaliation for
protected activity under the Louisiana Environmental Whistleblower Statute,
La. Rev. Stat. Ann. § 30:2027. Specifically, she alleged that she had been
dismissed 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 09-31054

reasonable, albeit erroneous, belief that a chemical spill had taken place that
was legally required to be reported to state or federal authorities. Alexander
subsequently amended her complaint to additionally allege that she was
dismissed because of her race, in violation of Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981. The case went to trial and a jury ruled in Monsanto’s
favor. The district court accordingly entered judgment for Monsanto, and we
now affirm the district court’s judgment.
      Alexander raises four issues on appeal. First, she claims that counsel for
Monsanto misstated the plaintiff’s burden of proof under Title VII during closing
argument. Second, she claims that Monsanto’s counsel also misstated various
facts during closing argument.         Third, she claims that during voir dire,
Monsanto’s counsel asked questions and made remarks that misled and
prejudiced prospective jurors. Fourth, she claims that the district court erred
by excluding certain evidence and testimony.
      As to the claim that Monsanto’s counsel misstated the law during closing
argument, the applicable standard of review is plain error because no objection
was 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
substantial rights, and (3) seriously affects the fairness, integrity, or public
reputation of judicial proceedings. An error is ‘plain’ if it is clear or obvious.” Id.
(footnote omitted).
      During closing argument, Monsanto’s counsel said, “To believe Ms.
Alexander’s story that she was terminated because of her race, you’re going to
have to believe that every white manager in the room is racist. You’re also going
to have to believe that all of these managers made up stories and lied about the
fact 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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of the law because, as she puts it, “all that is required is to prove that race is
‘one’ factor.”
      “Title VII explicitly permits actions proceeding under a mixed-motive
framework,” in which “the employee concedes that discrimination was not the
sole reason for her discharge, but argues that discrimination was a motivating
factor in her termination.” Richardson v. Monitronics Int’l, Inc., 434 F.3d 327,
333 (5th Cir. 2005) (citing 42 U.S.C. § 2000e-2(m)). Therefore, the statement by
Monsanto’s counsel was not entirely correct.        In order to prevail on her
discrimination claim, Alexander did not have to convince the jury that every
white manager who had anything to do with her dismissal was racist, nor that
all the testimony regarding her poor performance was false. She only had to
convince the jury that racial discrimination was one motivating factor in her
dismissal.
      However, Alexander fails to explain why this misstatement warrants
reversal under the plain error standard of review. Even if the remark was a
clear or obvious misstatement of law, Alexander has not established that it
affected her substantial rights — in other words, that “it affected the outcome
of the district court proceedings.” United States v. Velasquez-Torrez, 609 F.3d
743, 746 (5th Cir. 2010). After closing arguments, the district court instructed
the jury that “[s]tatements and arguments of the attorneys are not evidence and
are not instructions on the law.”    The court then correctly and specifically
instructed the jury that the “[p]laintiff does not have to prove that unlawful
discrimination was the only reason [the] defendant terminated her.” Under
these circumstances, it is unlikely that the jury rendered a verdict in Monsanto’s
favor because of confusion about what Alexander was required to prove.
      The second issue raised by Alexander is that Monsanto’s counsel misstated
certain facts during closing argument.      However, Alexander’s brief fails to
include citations to the record on appeal, and therefore provides no support for

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her assertions that the statements at issue were factually incorrect.         “Not
surprisingly, the Federal Rules of Appellate Procedure require that appellants,
rather than the courts of appeals, ferret out and articulate the record evidence
considered material to each legal theory advanced on appeal.” Conto v. Concord
Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001). See Fed. R. App. P. 28(a)(9)(A); 5th
Cir. R. 28.2.2. As a result, this issue is waived.
      Alexander’s third argument is that Monsanto’s counsel engaged in
misleading and prejudicial lines of questioning when speaking to prospective
jurors during voir dire. This issue is again subject to plain error review because
Alexander’s counsel did not object to any of the remarks.
       During voir dire, counsel for Monsanto asked prospective jurors several
hypothetical questions such as, “[If] somebody told you just because you are
white and because you live here that they considered you a racist, would you find
that offensive?” These rather inflammatory questions were apparently intended
to imply that Alexander believed that all white people from southeastern
Louisiana are racist. On appeal, Monsanto defends this line of questioning,
contending that it was “legitimately based on Alexander’s deposition testimony”
because she had “testified at her deposition that she believed all people in South
Louisiana were racist” and therefore “[c]ounsel anticipated Alexander would
testify similarly on cross-examination at trial.” However, the record does not
support Monsanto’s assertion that Alexander ever said that all people, or all
white people, in southern Louisiana were racist. At most, she stated in her
deposition that, compared to Chicago, “Louisiana would have a culture that
leans more toward” racism. Therefore, Monsanto’s counsel’s implication that
Alexander believed that all white people from southeastern Louisiana are racist
was inaccurate and unwarranted.
      Nonetheless, under plain error review, Alexander has not shown that
these questions during voir dire affected her substantial rights. At trial, counsel

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for Monsanto cross-examined Alexander regarding her beliefs about racism.
(Alexander does not argue on appeal that this line of questioning during cross-
examination was improper.) Counsel said to Alexander, “[Y]ou claimed that in
this area of the country, southeast Louisiana, that people who live here have a
‘problem’ with African Americans.” Alexander answered, “I absolutely did not
say that.” She explained that she believed that “there is a percentage of the
population . . . who have racist hearts” in southeastern Louisiana and in other
places. Insofar as the jury may have considered Alexander’s general beliefs
about racism in southeastern Louisiana to be relevant to their decision at all,
they had the opportunity to hear her testimony and to take that into account in
their deliberations. Therefore, Alexander has not shown that counsel’s earlier
hypothetical questions about racism during voir dire affected the outcome of the
trial, as required under plain error review.
      Alexander also claims that during voir dire, Monsanto’s counsel misled
potential jurors regarding the Louisiana Environmental Whistleblower Statute,
La. Rev. Stat. Ann. § 30:2027.      Counsel asked prospective jurors several
questions regarding the difference between ordinary and legal definitions of the
term “whistleblower” and whether they believed that all chemical spills should
be reported to the government regardless of the size of the spill or the toxicity
of the chemical. Alexander’s appellate brief fails to explain how any of these
questions were misleading as to the whistleblower statute’s requirements or as
to whether Alexander fulfilled those requirements. Therefore, this issue is
waived.
      Next, Alexander claims that Monsanto’s counsel misled prospective jurors
regarding a “performance improvement plan” which, according to Alexander,
never existed. Counsel stated during voir dire that “Monsanto, my client, it’s
their position that Ms. Alexander had several performance problems, they would
put her on performance improvement plans and that she, in fact, failed to

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                                  No. 09-31054

improve her performance and that’s why she was terminated.” This statement
was not misleading: it was an accurate description of the version of the facts that
was put forward by Monsanto’s witnesses. Alexander had a different version of
the facts, but there was nothing misleading about this statement by counsel at
voir dire. It did not amount to error, plain or otherwise.
      Finally, Alexander contends that the district court erred by excluding
certain documentary evidence and testimony. However, this set of arguments
is unavailing because Alexander does not appear to have made any offers of
proof regarding the excluded evidence and testimony, as required under Fed. R.
Evid. 103(a)(2).    “[T]his circuit will not even consider the propriety of the
decision 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
original) (quoting United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979))
(internal quotation marks omitted). “Although a formal offer is not required to
preserve error, the party must at least inform the trial court ‘what counsel
intends to show by the evidence and why it should be admitted.’” Id. (quoting
United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994)).         Alexander’s
appellate brief does not mention any offers of proof, and does not cite to any
pages of the record on appeal that might indicate that offers of proof were ever
made regarding the excluded evidence and testimony. Therefore, this argument
is waived.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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