     Case: 13-40540      Document: 00512659541         Page: 1    Date Filed: 06/11/2014




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

                                                                               FILED
                                    No. 13-40540                           June 11, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
MANDEL A. STOKER,

                                                 Plaintiff – Appellant,
v.

STEMCO, L.P.,

                                                 Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:11-CV-214


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Mandel Stoker appeals a district court judgment in favor of his former
employer, Stemco, LP (Stemco) after a jury verdict for Stemco in a Title VII
racial discrimination case. Stoker argues that the district court plainly erred
when it admitted a demonstrative exhibit during opening statements, and that
there is insufficient evidence to support the jury verdict. Because the district




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40540
court did not plainly err in admitting the exhibit and there is sufficient
evidence to support the jury verdict, we AFFIRM.
                                           I.
      Stoker, an African–American male, worked at Stemco for five years in
the hubcap and rubber molding departments. On what turned out to be his
final day of employment, Stoker refused to clean his machine as instructed by
his Team Lead and insisted that he see his supervisor. 1 After meeting with
his Team Lead and supervisor, Stoker returned to the production floor and
yelled to his Team Lead: “I want you to go on; I’m tired of you F–ing with me!”
Stemco then terminated Stoker for “insubordination.” Stoker brought this
lawsuit against Stemco, alleging that he was terminated because of his race in
violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
      At trial, Stoker, who was represented by counsel, testified that he was
called a “lazy n-----” and “boy” by one of the supervisors involved in the decision
to terminate Stoker. Stoker also testified that he was recognized as a “top
producer” and received awards and recognitions, including a Chick–Fil–A card.
      Stemco produced eight witnesses, including Johnny King, a 40-year
Stemco employee and African-American.              King was involved in Stoker’s
discipline for five to six years. King testified that Stoker was a troublesome
employee with an “excessive” disciplinary history and a problem with
authority. King also testified that Stoker’s supervisors were fair and did not
treat Stoker differently because of his race.
      Stemco also produced documentation of at least nine different occasions
where Stoker was formally disciplined by seven separate supervisors and three
Human Resources representatives, including three African-Americans. He


      1We must draw all reasonable inferences in the light most favorable to the verdict.
EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 452 (5th Cir. 2013) (en banc).

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                                  No. 13-40540
was reprimanded for making over 500 sub-standard parts, refusing to follow
supervisor instructions, verbally abusing co-workers and supervisors, and
threatening and intimidating a supervisor.        Witnesses also testified that
Stoker was suspended for three days for violating Stemco’s safety policies and
a supervisor’s instructions after refusing to leave a building during a fire
alarm. On a separate occasion, Stoker refused to re-enter his workplace after
a fire alarm at 2:35 a.m. because he did not personally hear from a specific
Human Resources manager who was home sleeping at the time.
      The jury returned a verdict in favor of Stemco, and the district court
entered final judgment. Stoker later filed multiple post-judgment motions,
which the district court denied. Stoker, acting pro se, filed a timely appeal.
                                        II.
      Stoker makes two arguments on appeal: the district court plainly erred
by admitting a demonstrative exhibit during opening statements in violation
of Federal Rule of Evidence 1006 and that there was insufficient evidence to
support the verdict. The parties agree that both issues are reviewed under
plain error because Stoker did not object to the demonstrative exhibit at trial
or file a Rule 50(a) motion at the close of the evidence. See Boh Bros., 731 F.3d
at 452; United States ex rel. Wallace v. Flintco, Inc., 143 F.3d 955, 963–64 (5th
Cir. 1998).
      Under plain error review, Stoker must show: (1) an error, (2) that is
plain, and (3) that affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). After this showing, we have discretion to remedy the
error (4) “only if the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Escalante–Reyes, 689 F.3d
415, 419 (5th Cir. 2012) (en banc). Under plain error review, “[i]f any evidence
supports the jury verdict, the verdict will be upheld.” Flintco, Inc., 143 F.3d at
964 (citing Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996)). Also,
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                                       No. 13-40540
the “jury is free is choose between reasonable constructions of the evidence.”
United States v. Ramos–Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).
       Turning to Stoker’s first argument, Stemco’s use of a demonstrative
exhibit during opening statement was not plain error requiring reversal.
Initially, we observe that, contrary to Stoker’s argument, Federal Rule of
Evidence 1006 does not apply because Rule 1006 does not bar a demonstrative
exhibit where the underlying documents are admitted into evidence. 2 See Fed.
R. Evid. 1006. Stemco created a chart summarizing nine previous disciplinary
actions against Stoker and submitted it to Stoker’s counsel before trial. In a
pre-trial hearing, the district court instructed the parties that Stemco’s chart
was a demonstrative exhibit—merely a “jury aid” and not evidence—and that
any objections must be taken up before presentation to the jury. Stoker did
not object to the demonstrative exhibit. Before allowing the jury to view the
demonstrative exhibit, the district court explained that the chart was not
evidence, would not be allowed in the jury room, and merely summarized
documents that would be later admitted as evidence. The district court has
wide latitude to allow counsel to use a demonstrative exhibit that was later
supported by evidence and not objected to and when the district court properly
gave a limiting instruction. There was no error, plain or otherwise.
       Turning to Stoker’s second argument, there is more than sufficient
evidence to support the verdict. See Flintco, Inc., 143 F.3d at 964 (“[i]f any
evidence supports the jury verdict, the verdict will be upheld.”). While Stoker
testified that he had been terminated as a result of racial discrimination, the
jury was free to choose to believe Stemco’s extensive evidence that Stoker was




       2Federal Rule of Evidence 1006 allows litigants to “use a . . . chart . . . to prove the
content of voluminous writings . . . that cannot be conveniently examined in court.”
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                                 No. 13-40540
terminated for insubordination. See Ramos–Cardenas, 524 F.3d at 605 (“the
jury is free is choose between reasonable constructions of the evidence.”).
      AFFIRMED.




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