     Case: 13-30205      Document: 00512470633         Page: 1    Date Filed: 12/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                                                         United States Court of Appeals

                                      No. 13-30205
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 13, 2013
TIM LAWSON,                                                                Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant,
v.

GRAPHIC PACKAGING INTERNATIONAL INCORPORATED,

                                                 Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 3:12-CV-56


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Tim Lawson filed suit against his former employer,
Defendant-Appellee, Graphic Packaging International Incorporated (“GPI”),
alleging, inter alia, that GPI terminated him because of his age, in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(l).
Lawson’s ADEA discrimination claim went to trial, and the jury returned a
verdict in favor of GPI.       Lawson appealed, arguing that the district court
abused its discretion in evidentiary rulings it made and jury instructions it
provided.    We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                          FACTUAL BACKGROUND
      In 2008, GPI hired Lawson to serve as a human resources manager at
its West Monroe, Louisiana paper mill.       Lawson reported directly to Tony
Hobson, the West Monroe facility’s mill manager.             In June 2010, Lawson
underwent surgery to remove melanoma from his back.                  Following the
surgery, Lawson’s relationship with Hobson began to deteriorate.            Lawson
testified that Hobson told him twice: “I don’t know that you can give me 120
percent like you have before.   At your age, and with your family this far away,
I—I don’t know that you’re not going to leave us and go back and visit—spend
the rest of your time with them.”    Hobson, at trial, denied making the remark.
Lawson also described similar age-related comments Hobson made to other
GPI employees.       Lawson claimed that Hobson intentionally overburdened
him with added job assignments, with the goal that the ratcheted workload
would lead Lawson to underperform.
      In September 2010, Hobson reported that Lawson had assigned a
temporary payroll employee to manage human resources and safety functions
during Labor Day weekend, without first consulting Hobson.               Later that
month, Lawson was fired, owing significantly to the weekend duty incident, as
well as to prior instances of poor performance.    At the time, Lawson was fifty-
eight years old.
                           STANDARD OF REVIEW
      A trial court’s “evidentiary rulings are affirmed unless the district court
abused its discretion and a substantial right of the complaining party was
affected.”    Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 581 (5th
Cir. 2004).    We similarly examine the district court’s jury instructions for an
abuse of discretion and reverse when both “the charge as a whole leaves us


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with substantial and ineradicable doubt whether the jury has been properly
guided in its deliberations and the challenged instruction . . . affected the
outcome of the case.”    Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352 (5th Cir.
2010) (alteration in original) (internal quotation marks omitted).
                                 DISCUSSION
I.    Evidentiary Rulings
      A.     “Pattern or Practice” Evidence
      Lawson’s principal argument is that the district court improperly
excluded Lawson’s proffered testimony recounting detailed examples of
Hobson’s prior discriminatory conduct toward other GPI employees.         Lawson
argues that this additional testimony would have strengthened his proof of
Hobson’s discrimination, underscoring Hobson’s history of forcing older
employees to resign by the modus operandi of inducing and documenting
performance shortcomings.        Lawson also contends that he would have
discussed the case of Bobby Woods, a GPI employee who was terminated after
reporting similar behavior by Hobson, which Lawson offers as an explanation
for his initial hesitance to report Hobson’s discriminatory conduct.
      As Lawson notes, an ADEA plaintiff may establish that the defendant
engaged in a pattern or practice of discrimination by showing “by a
preponderance of the evidence that [the impermissible] discrimination was the
company’s standard operating procedure-the regular rather than the unusual
practice.”   Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000)
(quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)).
Testimony concerning “similarly situated employees and the reasons for their
discharge [is] relevant in proving a pattern and practice of age discrimination.”
Harpring v. Cont’l Oil Co., 628 F.2d 406, 409 (5th Cir. 1980) (citing Fed. R.


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Evid. 401 and 404(b)); cf. EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093-
94 (5th Cir. 1994) (holding that age-focused statements by a supervisor
directed at the plaintiff over a four-year period “may indicate a pattern of
discriminatory comments and as such are directly relevant to showing the
existence of discriminatory motive”).     However, a plaintiff may not effectively
force the employer to defend “mini-trials” on other employees’ claims of
discrimination that are “not probative on the issue of whether [the plaintiff]
faced discrimination.”    Wyvill, 212 F.3d at 303; see also Harpring, 628 F.2d at
410 (citing Fed. R. Evid. 403 and affirming the district court’s exclusion of
evidence of other incidents of age discrimination as cumulative and as
requiring “trying another lawsuit within the existing lawsuit”).
      After sidebar discussion with counsel during the trial, the district court
made clear that it would “sustain” GPI’s objection to detailed testimony
concerning Bobby Woods under Federal Rule of Evidence 403, because “[w]e’re
being forced to try that case too.”    Consistent with its admonition, however,
the district court permitted Lawson to testify repeatedly, often over GPI’s
objection, in a more limited fashion as to Hobson’s discriminatory conduct
toward several GPI employees.         Lawson also specifically referenced Woods
and Woods’s termination, and Lawson described his fear of retribution for
reporting Hobson’s asserted abuses.          Moreover, the district court allowed
Lawson’s counsel to cross-examine Hobson concerning his age-related
comments to other employees, and the jury heard Hobson fail to deny making
several of the statements.      The district court struck a considered balance
between permitting the jury to consider “pattern and practice” evidence and
avoiding introduction of cumulative evidence, and we discern no abuse of
discretion in its handling of the issue.        See Harpring, 628 F.2d at 610.


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Moreover, Lawson does not explain how excluding any more finely detailed
discussion of Hobson’s past behavior affected his substantial rights at trial.
Kanida, 363 F.3d at 581.      The district court did not reversibly err in excluding
Lawson’s further pattern and practice testimony.
         B.    Age of Replacement Evidence
         Lawson argues that the district court abused its discretion in reading to
the jury a withdrawn stipulation of the parties as to the age of Lawson’s
replacement at GPI, Cathy Engle, who was fifty-four years old.         The district
court announced this stipulated fact to the jury even though, previously, the
court had sustained Lawson’s motion to withdraw the stipulation.           Defense
counsel further argued to the jury in closing that Engle’s similar age indicated
that it was unlikely that GPI had discriminated against Lawson.            Lawson
contends that the district court erred because the age of his replacement was
irrelevant to his theory of the case; he never sought to prove that he was
replaced by a substantially younger worker.         See O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996) (invalidating a court-imposed
requirement that a plaintiff demonstrate that he was replaced by a worker
younger than the ADEA protected class of employees over forty-years-old,
because “[t]he fact that one person in the protected class has lost out to another
person in the protected class is thus irrelevant, so long as he has lost out
because of his age.” (emphasis in original)).
         While it may be true that Lawson withdrew his stipulation and
correspondingly never urged that his replacement’s age was evidence of GPI’s
discriminatory conduct, it does not follow that the district court reversibly
erred.     Engle’s age, close in proximity to Lawson’s, if properly admitted, would
have been relevant evidence of GPI’s lack of a motive to discriminate based on


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                                   No. 13-30205

age.    See O’Connor, 517 U.S. at 313 (“In the age-discrimination context, such
an inference [of discrimination] cannot be drawn from the replacement of one
worker with another worker insignificantly younger.”); Nieto v. L&H Packing
Co., 108 F.3d 621, 623-24 & n.7 (5th Cir. 1997) (holding that evidence of a
defendant-employer’s mostly minority workforce and evidence that the
Hispanic plaintiffs replacement was also Hispanic, was “not outcome
determinative,” but was “certainly material to the question of discriminatory
intent”); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000)
(stating that the plaintiff’s argument “incorrectly expands [Nieto’s] holding
into a presumption that replacement by someone within one’s protected class
is irrelevant.”).   Given the relevance to GPI’s motive, we conclude that even if
the district court erred in admitting the withdrawn stipulation, the error was
not reversible.
II.     Jury Instructions
        Lawson raises three issues with the district court’s jury instructions,
including that the district court failed to issue several of his proposed jury
charge formulations. As noted, our review of jury instructions is for an abuse
of discretion that “affected the outcome of the case.”      Jowers, 617 F.3d at 352
(internal quotation marks omitted).      We consider the district court’s refusal
to provide a party’s favored jury instruction “reversible error only if the
instruction 1) was a substantially correct statement of law, 2) was not
substantially covered in the charge as a whole, and 3) concerned an important
point in the trial such that the failure to instruct the jury on the issue seriously
impaired the [party’s] ability to present a given [claim].”    Kanida, 363 F.3d at
578 (alteration in original) (internal quotation marks omitted).
        Lawson first argues that the district court failed to instruct the jury


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sufficiently on how to evaluate Hobson’s discriminatory comments.        Lawson
argues that the court should have issued his requested instruction clarifying
that the jury could infer discrimination by circumstantial evidence of Hobson’s
remarks.   However, the district court did issue an instruction explaining the
meaning of circumstantial evidence and informing the jury that “law makes no
distinction between direct and circumstantial evidence.”    As described below,
also, the district court issued a “Cat’s Paw” theory charge, instructing that the
jury could hold GPI liable for age discrimination based on Hobson’s conduct in
recommending Lawson for termination.       Lawson does not describe how those
measures were insufficient to inform the jury’s evaluation of evidence of
Hobson’s comments.     See Kanida, 363 F.3d at 578.
      Lawson secondly objects to language in the district court’s Cat’s Paw
theory instruction.   “Under the cat’s paw theory, a subordinate employee’s
discriminatory remarks regarding a co-worker can be attributed to the
workplace superior, ultimately the one in charge of making employment
decisions, when it is shown that the subordinate influenced the superior’s
decision or thought process.”   Haire v. Bd. of Supervisors of La. State Univ.
Agric. & Mech. Coll., 719 F.3d 356, 366 n.11 (5th Cir. 2013).   The district court
informed the jury that “[i]f a supervisor performs an act motivated by
discriminatory animus that is intended by the supervisor to cause the
employee’s termination, and that act is [sic] determinative factor in the
employee’s termination, then the employer is liable.”       Lawson appears to
argue that the court erred in using the phrase “determinative factor” rather
than “proximate cause,” drawing the latter formulation from the Supreme
Court’s recent explication of the Cat’s Paw theory as it relates to the Uniformed
Services Employment and Reemployment Rights Act, Staub v. Proctor Hosp.,


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131 S. Ct. 169 1186, 1192 (2011).      Lawson, however, does not point to any
legally significant deficiency in the district court’s choice of phrase, and he does
not outline any prejudice flowing from the charge.          See Jowers, 617 F.3d
at 352.
      Finally, Lawson challenges the district court’s decision to issue an
instruction concerning the “same-actor” inference.             “The ‘same actor’
inference arises when the individual who allegedly discriminated against the
plaintiff was the same individual who hired the plaintiff and gives rise to an
inference that discrimination was not the motive behind plaintiff’s
termination.”    Russell v. McKinney Hosp. Venture, 235 F.3d 219, 228 n.16 (5th
Cir. 2000).   The district court specified that “[o]ne may conclude that there is
no age discrimination involved if the same person hires and fires the employee
alleging age discrimination.”
      Lawson argues that a same-actor charge is not warranted in this case
because testimony at trial may have indicated that Hobson was not the sole
actor involved in the decision to hire him.    Lawson offers no authority for the
claim that a same-actor inference is impermissible where the alleged
discriminatory employee is one of several parties involved in the hiring
decision.     Even were we to assume arguendo that it would have been
inappropriate to draw a same actor inference in this case had several actors
contributed to the decision to hire Lawson, Lawson’s own testimony was that
Hobson was, in fact, the person who hired him at GPI.        See Pierce v. Ramsey
Winch Co., 753 F.2d 416, 425 (5th Cir. 1985) (“a defendant is also entitled to
have the jury instructed on the law that supports defensive theories that are
raised by the evidence”); Syrie v. Knoll Int’l, 7 48 F.2d 304, 310 (5th Cir. 1984)
(“It is well established that a jury should be instructed on a legal theory only


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if the evidence adduced at trial is sufficient to justify such an instruction.”)
(internal quotation marks omitted)).         The district court’s instruction also
referred only to the singular, “same person” who both “hires and fires” the
plaintiff.   It further emphasized the permissive nature of the same-actor
inference, stating only that “[o]ne may conclude that there is no age
discrimination involved” if its conditions are met.      See Russell, 235 F.3d at
228 n.16.     Given Lawson’s testimony, the jury was permitted to assess
whether—and, if so, to assign significance to the fact that—Hobson was a
relevant “same actor” in both the decisions to hire and fire Lawson.
      In none of his challenges to the jury instructions does Lawson
demonstrate an abuse of discretion that “leaves us with substantial and
ineradicable doubt whether the jury has been properly guided” and that
“affected the outcome of his case.”   Jowers, 617 F.3d at 352 (internal quotation
marks omitted). We affirm the district court’s jury instructions.
      AFFIRMED.




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