     Case: 15-20758      Document: 00513955098         Page: 1    Date Filed: 04/17/2017




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

                                                                                      FILED
                                      No. 15-20758                                  April 17, 2017
                                                                                   Lyle W. Cayce
                                                                                        Clerk
JUNIOUS VITAL; DAMON DARBY; HERBERT HEARD; BILLY ROSE;
JEROME JOHNSON; EDWARD JILES; DEWARREN BELLARD; DAVID
LANE,

              Plaintiffs – Appellants Cross-Appellees

v.

NATIONAL OILWELL VARCO, L.P.,

              Defendant – Appellee Cross-Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:12-CV-1357


Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.
PER CURIAM: ∗
       Plaintiffs are eight African-American men who all worked at National
Oilwell Varco’s (“NOV”) West Gulf Bank Road facility in Houston, Texas.
Plaintiffs brought this suit in the district court alleging that they were the
victims of harassment and retaliatory employment actions on the basis of their
race. The district court granted in part and denied in part NOV’s motion for

       ∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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summary judgment, and the remaining claims went to trial. After a thirteen-
day trial, the jury returned a verdict for NOV on all claims. The district court
subsequently denied post-trial motions, and Plaintiffs timely appealed to this
Court. We affirm.
                                              I.
       On appeal, Plaintiffs argue that: (1) the admission of the complaint from
another case was prejudicial error; (2) defense counsel’s remarks during
summation constitute reversible error; (3) the district court erred in granting
summary judgment on the wrongful termination claims of Plaintiffs Vital,
Heard, Jiles, and Bellard; and (4) that Plaintiff Johnson was entitled to a
Judgment Notwithstanding the Verdict (“JNOV”) or a new trial on his
constructive termination claim.
       NOV urges that Plaintiffs’ briefing before this Court is deficient and fails
to comply with Rule 28, 1 specifically pointing to: (1) the failure to provide a
standard of review for two of Plaintiffs’ appeals; 2 (2) deficiencies regarding
citations to the record for each of Plaintiffs’ appeals; (3) a failure to summarize
or cite to the district court’s rulings regarding Plaintiffs’ appeals; and (4) the
lack of an argument section regarding Johnson’s appeal of his denial of JNOV
or motion for a new trial. NOV notes that we have previously held that
“[f]ailure to comply with the rules of this court regarding the contents of briefs
can be grounds for dismissing a party’s claims.” 3


       1  See FED. R. APP. P. 28.
       2  The argument section of Plaintiffs’ brief correctly states that this Court reviews a
grant of summary judgment de novo. The summary of the argument section of Plaintiffs’ brief
contains a partial statement of this Court’s standard of review for improper statements by
counsel during summation. Plaintiffs’ brief does not contain this Court’s standard of review
for erroneous admission of evidence, denial of a motion for JNOV, or denial of a motion for a
new trial.
        3 United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (citation omitted); accord

Davison v. Huntington Ingalls, Inc., 712 F.3d 884, 885 (5th Cir. 2013) (citing Owens v. Sec’y
of Army, 354 F. App’x 156, 158 (5th Cir. 2009) (per curiam)) (holding that “[d]ismissal is
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       We are persuaded that Plaintiffs’ briefing, while deficient, is here
sufficient.
                                              A.
       Plaintiffs’ first alleged error is the district court’s admission into
evidence of the complaint in another case, Bryant, et al. v. FMC Technologies,
Inc., and the cross examination of Plaintiff Vital regarding that complaint. We
review the district court’s evidentiary rulings for abuse of discretion, 4 and “[w]e
reverse a judgment based on an erroneous evidentiary ruling only if that ruling
‘affected the substantial rights of the parties.’” 5
       Plaintiffs argue that NOV’s theory of the case—that Vital knew that
Plaintiffs’ counsel had been successful in the FMC litigation and shaped his
allegations to match those of the FMC plaintiffs—was “superficial” and
resulted in “a verdict based on passion and prejudice.” NOV responds that it
was entitled to present the jury with evidence supportive of its fabrication
defense and that there was other corroborating evidence of fabrication in the
record, such as the fact that Plaintiffs did not complain of seeing physical
nooses in the workplace until after they had become aware of the facts of the
FMC case.
       The FMC complaint is relevant under the Federal Rules of Evidence in
support of the defense of fabrication. 6 Plaintiffs appear to argue that the
complaint should have been excluded under Rule 403 as unfairly prejudicial. 7



warranted where the non-compliance is not merely ‘technical or stylistic,’ but rather is so
‘fundamental’ that it prevents the court from engaging in meaningful review.”).
       4 Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th Cir. 1993).
       5 Aransas Project v. Shaw, 775 F.3d 641, 655 (5th Cir. 2014) (quoting Stover v.

Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 992 (5th Cir. 2008)).
       6 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in determining the
action.” FED. R. EVID. 401.
       7 FED. R. EVID. 403.


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But, the conclusory statement that the “verdict was based on passion and
prejudice” notwithstanding, Plaintiffs have failed to articulate any unfair
prejudicial value that would outweigh its relevance. The district court did not
abuse its discretion in admitting the FMC complaint.
                                               B.
       Plaintiffs next argue that the court erred in failing to grant a new trial
after defense counsel called Plaintiffs’ counsel the “Hydra of Lerna” and a
racist during closing arguments. We review the trial court’s denial of a motion
for a new trial for abuse of discretion. 8 “A motion for new trial premised on
improper arguments by counsel should only be granted when ‘improper closing
argument irreparably prejudices a jury verdict or if a jury fails to follow
instructions.’” 9 “A closing statement may implicate the interest of substantial
justice when counsel’s assertions are ‘either false or without basis in the
record.’” 10
       In context, the statements regarding the Hydra of Lerna refer to the case
Plaintiffs’ counsel had put before the jury and not Plaintiffs’ counsel—NOV
was analogizing Plaintiffs’ theory of the case to a hydra and arguing that it
had morphed and expanded over the course of the trial. Likewise, it does not
appear that NOV called Plaintiffs’ counsel racist, but rather argued that
Plaintiffs’ theory of the case was racist. Tellingly, an objection was not made
when the statements were made. There was no error warranting a new trial.




       8 Alaniz v. Zamora-Quezada, 591 F.3d 761, 770 (5th Cir. 2009) (citing Dotson v. Clark
Equip Co., 805 F.2d 1225, 1227 (5th Cir. 1986)).
       9 Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 509 (5th Cir. 2012) (quoting Nissho-

Iwai, Co. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir. 1988)).
       10 In re Isbell Records, Inc., 774 F.3d 859, 872 (quoting Wallner v. Ziegler, 470 F. App’x

230, 233 (5th Cir. 2012)).
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                                            C.
      Plaintiffs argue that the district court erred in granting summary
judgment on the wrongful termination claims of Plaintiffs Bellard, Heard,
Jiles, and Vital. 11 We review a district court’s grant of summary judgment de
novo, applying the same standard as the trial court. 12 On a motion for summary
judgment in a Title VII discriminatory termination case based upon
circumstantial evidence, this Court applies the familiar burden shifting
framework:
      To survive summary judgment under McDonnell Douglas, the
      plaintiff must first present evidence of a prima facie case of
      discrimination. If the plaintiff presents a prima facie case,
      discrimination is presumed, and the burden shifts to the employer
      to articulate a legitimate, nondiscriminatory reason for the
      underlying employment action. If the employer is able to state a
      legitimate rationale for its employment action, the inference of
      discrimination disappears and the plaintiff must present evidence
      that the employer’s proffered reason was mere pretext for racial
      discrimination. 13

“A prima facie case is established once the plaintiff has proved that she (1) is
a member of a protected class; (2) was qualified for her position; (3) was
subjected to an adverse employment action; and (4) was replaced by someone
outside the protected class.” 14 Employees may also raise an inference of




      11  Plaintiffs also argue that the district court was wrong to grant summary judgment
on Plaintiff Lane’s wrongful termination claim. The district court denied summary judgment
on Lane’s wrongful termination claim. That claim went to trial and the jury found that race
was not a motivating factor in Lane’s termination.
       12 Bacharach v. Suntrust Mortg., Inc., 827 F.3d 432, 434 (5th Cir. 2016)
       13 Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004) (citation

omitted).
       14 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).


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discrimination if they “compare [their] treatment to that of nearly identical,
similarly situated individuals” who were not terminated. 15
       The district court found that each of the Plaintiffs against whom
summary judgment was granted had either failed to make out the prima facie
case for discrimination or had failed to provide competent summary judgment
evidence that the reason for termination proffered by NOV was pretext. In
their brief, Plaintiffs restate claims of racial slurs in the workplace and dispute
the circumstances surrounding their terminations without offering evidence
responsive to that finding. We have previously held that “[s]imply disputing
the underlying facts of an employer’s decision is not sufficient to create an issue
of pretext.” 16 Absent evidence that non-African-American employees were
treated differently, that the Plaintiffs were replaced with non-African-
American employees, or that management was not just mistaken about the
events surrounding these terminations but used those events as a pretext for
racial discrimination, Plaintiffs were not entitled to move to trial on these
claims. 17
                                             D.
       Plaintiffs finally argue that the district court erred by failing to grant
JNOV or a new trial on Plaintiff Johnson’s constructive termination claim.
This Court will only reverse a district court’s denial of JNOV if the evidence,
viewed in the light most favorable to the non-movant, is such that no rational




       15 Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (citing Mayberry
v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)).
       16 LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) (quoting

Sandstad v. CB Richard Ellis, Inc., 309 F,3d 893, 899 (5th Cir. 2002)).
       17 “[E]vidence that the employer’s investigation merely came to an incorrect conclusion

does not establish a racial motivation behind an adverse employment decision. Management
does not have to make proper decisions, only non-discriminatory ones.” Bryant, 413 F.3d at
478.
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jury could have found for the non-movant. 18 Our standard of review for denial
of a new trial is similarly burdensome for an appellant:
        Our review of the denial of a new trial motion is more limited than
        when one is granted. The denial will be affirmed unless there is a
        clear showing of an absolute absence of evidence to support the
        jury’s verdict, thus indicating that the trial court had abused its
        discretion in refusing to find the jury’s verdict contrary to the great
        weight of the evidence. 19

        Plaintiffs failed to move for JNOV prior to the closing of the record and
are foreclosed from doing so now. 20 Plaintiffs did move for a new trial, but their
sole argument in support of a new trial is that the district court found a
material issue of fact precluding summary judgment on Johnson’s hostile work
environment claims. This is essentially a recast of the no evidence contention,
one we otherwise today reject.
                                              II.
        NOV appeals the denial of certain costs by the district court. Our rule is
that:
        Unless a federal statute, the [Federal Rules], or a court order
        provides otherwise, costs—other than attorney’s fees—should be
        allowed to the prevailing party. Because [Rule 54] authorizes the
        district court to deny the award, we review that exercise of
        authority for abuse of discretion. It follows that a reduction in a
        cost award is likewise reviewed for abuse of discretion. 21

        The costs at issue largely turn on the district court’s decision that the
case before it was not exceptional and that the depositions obtained were not
necessarily obtained for use in the case. We give “great latitude in [these]

        18See Horton v. Buhrke, a Div. of Klein Tools, Inc., 926 F.2d 456, 459 (5th Cir. 1991).
        19Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 444 (5th Cir. 2001) (internal quotation
marks omitted) (citation omitted).
       20 See Sorrels v. Tex. Bank and Trust Co. of Jacksonville, Tex., 597 F.2d 997, 999 (5th

Cir. 1979).
       21 Moore v. CITGO Ref. & Chems. Co., 735 F.3d 309, 319 (5th Cir. 2013) (citations

omitted) (internal quotation marks omitted).
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determination[s],” 22 and NOV has failed to demonstrate that the district court
abused its discretion. We affirm.




      22 U.S. ex rel. Long v. GSDMIdea City, L.L.C., 807 F.3d 125, 130 (5th Cir. 2015)
(quoting Fogleman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991) (internal quotation
marks omitted).
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