                          REVISED MARCH 14, 2013

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

                                                                           FILED
                                                                         March 13, 2013
                                     No. 12-60579
                                                                          Lyle W. Cayce
                                   Summary Calendar
                                                                               Clerk


HENRY LEWIS PATTERSON, also known as H. L. Patterson,

                                                  Plaintiff-Appellant
v.

YAZOO CITY, MISSISSIPPI; YAZOO COUNTY, MISSISSIPPI; YAZOO
RECREATION COMMISSION,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                  5:10-CV-153


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This case arises from a wrongful termination lawsuit filed by Plaintiff-
Appellant Henry Lewis Patterson against Defendant-Appellants Yazoo City,
Yazoo County, and Yazoo Recreation Commission. Patterson seeks reversal of
the district court’s grant of summary judgment as to Yazoo County, and of its


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 12-60579

judgment based upon a jury verdict with respect to Yazoo City and Yazoo
Recreation Commission. Patterson argues that there was insufficient evidence
to sustain a defense verdict on his due process claim under the Fourteenth
Amendment, and that the district court erred in refusing to allow him to read
deposition transcripts to the jurors. Patterson further argues that the district
court, in granting summary judgment, used the wrong standard to determine
whether Yazoo County was a joint employer of Patterson with the Commission.
For the following reasons, we affirm the grant of summary judgment as well as
the final judgment of the district court in all respects.
                 I. FACTS AND PROCEDURAL HISTORY
      The Yazoo Recreation Commission (“Commission”) was established by
statute in 1979. It oversees parks and recreational facilities in the Yazoo City
area. Yazoo City (“City”) and Yazoo County (“County”) each appoints five
Commissioners to the Commission, who serve part-time as policymakers. The
Superintendent of Recreation (“Superintendent”) is the Commission’s top-
ranking employee. He is charged with supervising all other Commission
employees, most purchasing decisions, management of daily operations, and
organizing and promoting the Commission’s recreational activities.
      Plaintiff-Appellant H. L. Patterson (“Patterson”) was hired by the Yazoo
City recreational department and was employed by the Commission upon its
formation. In 1997, Patterson was promoted to Superintendent. During his
tenure as Superintendent, the Commission’s performance declined. Patterson
admits that since 2004, private citizens have undertaken regular, organized
cleanup efforts in Commission-run parks. It is undisputed that during this
period the Commission’s financial condition also deteriorated.
      In 2007 and 2008, a group of new commissioners was appointed to the
Commission. In February 2009, after several employees resigned, the new
commissioners met and decided to “start from scratch.” At this meeting, they


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elected officers, including a new Chairman, Tommy Guthrie, and addressed
issues like meeting times and rules, the budget, accounting, and personnel.
      After their February meeting, Guthrie and the other board members
learned from their accountant that the Commission’s bank account was
overdrawn by nearly $13,000. They also inspected the equipment in the
Commission’s inventory and found much of it in poor condition. That spring,
Guthrie and other commissioners spoke to Patterson about the problems with
his performance, and eventually about his potential termination. Later in the
spring, Guthrie had several informal meetings with Patterson where he
informed Patterson of the board’s dissatisfaction with his performance, and
where Patterson had an opportunity to respond. During one of their meetings,
Guthrie warned Patterson that members of the commission “were looking for
[Patterson’s] job if things didn’t get better.” The evidence reflects that, at that
meeting, Patterson told his side of the story about his performance issues.
      At its meeting on April 1, 2009, the Commission voted unanimously to
terminate Patterson’s employment. On April 6, Guthrie informed Patterson of
his termination. Patterson allegedly did not seek to address the board because
he believed that the decision was final.
      On September 27, 2010, Patterson filed a complaint in the district court
alleging that the Commission, by terminating his employment, discriminated
against him based on his disability (his legs are amputated) and his age in
violation of the Americans with Disabilities Act (“ADA”) and the Age
Discrimination in Employment Act (“ADEA”), respectively. Patterson amended
his complaint twice to add the County and the City, claiming that each was a
“joint employer,” and to include a due process claim under the Fourteenth
Amendment against all the Defendants. Patterson filed a motion for partial
summary judgment for the due process claim; the City also filed a motion for
partial summary judgment, and the Commission and the County each filed a


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motion for summary judgment. The district court granted the County’s motion
and denied the others.
      The case against the City and the Commission proceeded to a jury trial.
During the trial, the district court excluded depositions of representatives from
the City and the Commission, who were listed as deposition witnesses in the
pretrial order. At the conclusion of the trial, the jury answered interrogatories
and returned a verdict for the remaining Defendants on all counts. During the
trial, Patterson never moved for judgment as a matter of law under Rule 50(a)
of the Federal Rules of Civil Procedure. In addition, Patterson did not object to
any of the jury instructions or interrogatories. The district court entered an
order of final judgment on June 22, 2012, and Patterson timely appealed.
                               II. DISCUSSION
      On appeal, Patterson raises three issues. First, he argues that there was
insufficient evidence to sustain a defense verdict on his due process claim under
the Fourteenth Amendment. Second, Patterson argues that the district court
erred in refusing to allow him to read two deposition transcripts to the jury.
Third, Patterson argues that the district court, in granting summary judgment,
used the wrong standard to determine whether Yazoo County was a joint
employer of Patterson with the Commission. We address these issues in turn.
A.    Due Process Claim
      Patterson argues that he was a public employee with a property interest
in his continued employment, and therefore had due process rights under the
Fourteenth Amendment with respect to his termination. He argues that the
parties’ testimony and documentary evidence was insufficient to sustain a
defense verdict on whether his termination violated his due process rights.




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      We find that Patterson has waived this argument because he failed to
preserve it by filing a Rule 50(a) motion for judgment as a matter of law.1 In a
jury trial, a party who “fails to present a Rule 50(a) motion on an issue at the
close of evidence waives both its right to present a Rule 50(b) motion after
judgment and its right to challenge the sufficiency of the evidence on appeal.”
Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 288 (5th Cir. 2007). “[T]he
two basic purposes of this rule are to enable the trial court to re-examine the
question of evidentiary insufficiency as a matter of law if the jury returns a
verdict contrary to the movant, and to alert the opposing party to the
insufficiency before the case is submitted to the jury.” Id. (citation and internal
quotations omitted). In addition, “a defendant’s objection to proposed jury
instructions on grounds pertaining to the sufficiency of the evidence issues it
seeks to appeal may satisfy these purposes.” Id. Patterson did not file a Rule
50(a) or Rule 50(b) motion, or object to the proposed jury instructions, and
therefore his challenge is waived. Id.
      Patterson further argues that the district court applied the wrong legal
standard in evaluating his due process claim. He asks us to evaluate his due
process claim under the four-factor test set forth in Levitt v. University of Texas
at El Paso, 759 F.2d 1224, 1228 (5th Cir. 1985). Yet, Patterson never proposed
a jury instruction reflecting the Levitt factors and did not object to the jury
instruction given. Thus, his argument that we now should apply the Levitt test
is waived. See, e.g., Nero v. Indus. Molding Corp., 167 F.3d 921, 932 (5th Cir.
1999) (citing Fed. R. Civ. P. 51) (“No party may assign as error the giving or the
failure to give an instruction unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.”).


      1
          In addition, Patterson failed to file a Rule 50(b) motion after judgment.

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      Because Patterson failed to preserve error as to the sufficiency of the
evidence and the proper legal standard in the jury instructions, we review both
issues under the plain error standard. Navigant Consulting, 508 F.3d at 292,
295-96. We are “exceedingly deferential” to the trial court under plain error
review. Id at 296 (citation and internal quotation marks omitted).
      Regarding the jury instruction issue, Patterson “must show ‘that the
instructions made an obviously incorrect statement of law that was probably
responsible for an incorrect verdict, leading to substantial injustice.’” Id. at 296
(citing Positive Black Talk, Inc. v. Cash Money Records, Inc., 394 F.3d 357, 369
(5th Cir. 2004)). Patterson has failed to make this showing. The jury was
instructed that “due process does not require a formal hearing, but it does
require that the employee be given notice of the action that may be taken
against him, and a meaningful opportunity to tell his side of the issue.” This
instruction is not “an obviously incorrect statement of law.” To the contrary, it
accurately summarizes the law in this circuit. See Browning v. City of Odessa,
Tex., 990 F.2d 842, 844-45 (5th Cir. 1993).
      As to the sufficiency of the evidence, under plain error review, “if any
evidence exists that supports the [jury’s] verdict, it will be upheld.” Navigant
Consulting, 508 F.3d at 292 (citations and internal quotation marks omitted).
The record reflects that the jury was presented with evidence that Patterson’s
termination met the standard given in the instructions. Guthrie testified that
before the termination vote he met with Patterson and told him that members
of the Commission were “looking for his job” if he did not perform better. And
Guthrie had previously informed Patterson of performance issues that made
termination a possibility. Moreover, Patterson has admitted that, at a meeting
where Guthrie informed him of the possibility of his termination, he “told what
[his] side of the story was.” In light of the evidence available to the jury,



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Patterson has not shown plain error in its verdict on his due process claim.
Accordingly, we do not disturb its verdict on this issue.
B.    Deposition Testimony
      Patterson next argues that the the district court erred in excluding the
deposition transcripts of representatives of the City and the Commission. In
particular, Patterson argues that he should have been allowed to read at trial
the depositions of these representatives taken under Federal Rule of Civil
Procedure 30(b)(6) because he allegedly stated in the pretrial conference his
intent to read the entire deposition. He claims that 30(b)(6) depositions may be
used for “any purpose” under the circumstances of this case, see Fed. R. Civ. P.
32(a)(3), and apply to the testimony of corporate representatives, Hilderbrand
v. Levi Strauss & Co., No. 3:09cv243-DPJ-FKB, 2011 U.S. Dist. LEXIS 104236,
at *1-2 (S.D. Miss. Sept. 14, 2011). Patterson argues that we should set aside the
jury verdict under Federal Rule of Civil Procedure 60 because the exclusion of
the depositions affected his substantial rights and was not harmless error. We
disagree.
      In denying Patterson’s request to read the transcripts, the district court
was enforcing the disclosure requirements of the pretrial order. “The district
court’s decision to exclude evidence as a means of enforcing a pretrial order must
not be disturbed absent a clear abuse of discretion.” Versai Mgmt. Corp. v.
Clarendon Am. Ins. Co., 597 F.3d 729, 730 (5th Cir. 2010) (citation and internal
quotation marks omitted).
      The district court found that reading the depositions to the jury would
amount to “ambushing the other side” because Patterson had not given the
required notice of the portions of the transcripts to be read. First, the pretrial
order required parties offering deposition testimony to “state whether the entire
deposition, or only portions, will be used.” Patterson did not inform the City or
Commission of the portions of the transcripts he planned to use. Second,

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Patterson listed the representatives in both the “will testify live” and the “will
testify by deposition” sections of the pretrial order, knowing that he could select
only one. Third, the pretrial order states that “listing of a will call witness
constitutes a professional representation, upon which opposing counsel may rely,
that the witness will be present at trial.” The defendants reasonably relied on
Patterson’s representation that he would examine the two witnesses at trial.
Despite the reliance he created, Patterson did not indicate until the Friday
before trial that he intended to read the depositions to the jury. Based on his
noncompliance with the pretrial order, we find that the district court did not
abuse its discretion in preventing him from reading the transcripts.
C.    “Joint Employer” Standard
      Finally, Patterson challenges the district court’s grant of summary
judgment to the County on the grounds that the court improperly applied the
joint employer test from Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.
1983), in finding that the County (and the City) could not be considered
Patterson’s primary employer. Specifically, Patterson argues that the district
court should not have excluded “financial control” as a factor in determining
whether the County was a joint employer with the Commission.
      We review a grant of summary judgment de novo, applying the same
standards used by the district court. ACE Am. Ins. Co. v. M-I, L.L.C., 699 F.3d
826, 830 (5th Cir. 2012). Under Rule 56(a), summary judgment must be granted
“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We
examine the evidence in the light most favorable to the nonmoving party, and
draw any reasonable inferences in favor of that party.” Cannata v. Catholic
Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (internal citations omitted).
      On appeal, Patterson has not raised a genuine dispute of material fact.
However, we need not engage in a summary judgment review of this issue

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because it is moot. As the City correctly notes in its brief, the Trevino test does
not create an independent claim for relief. Rather, it functions to determine
whether separate entities are sufficiently connected such that their employees
should be counted together for purposes of meeting the numerical thresholds for
coverage under the ADA and ADEA. Trevino, 701 F.2d at 404; Schweitzer v.
Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir. 1997). Patterson’s
ADA and ADEA claims failed at trial, and he does not challenge the jury’s
findings as to these claims on appeal. Given that Patterson does not challenge
the jury’s findings on the underlying claims, which would form the basis for any
relief had Trevino been applied differently, his challenge to the district court’s
alleged misapplication of Trevino is moot.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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