     Case: 11-60755       Document: 00512100298         Page: 1     Date Filed: 01/03/2013




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

                                                                            FILED
                                                                          January 3, 2013

                                     No. 11-60755                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WILLIE B. SOUTHERN,

                                                  Plaintiff-Appellant
v.

ATLANTIC INDUSTRIAL SERVICES, INC.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:08–CV–782


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Willie B. Southern was employed as a truck driver by Appellee
Atlantic Industrial Services, Inc. (“Atlantic”) from 2006–2008. His duties at
Atlantic consisted of driving a truck to and from various states to pick up roll-off
boxes and return them to Atlantic’s facility in Jackson, Mississippi. On January
2, 2008, Southern was driving en route to Shreveport, Louisiana when the
transmission fluid in his truck leaked out and the transmission burned up. Two


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60755

weeks later, on January 15, Southern accidentally left the boom on his truck
extended while driving, and, as a result, pulled down three power lines, broke
an electrical pole, and caused a transformer to explode. The two incidents
combined resulted in nearly $50,000 in damages to Atlantic’s and the electric
company’s property. Atlantic terminated Southern after determining that his
continued employment would be detrimental to his own and the public’s safety,
as well as a risk to Atlantic’s equipment and property.
       On December 29, 2008, Southern filed his original complaint alleging that
Atlantic discharged him on account of his race. After a week-long jury trial
where both parties presented witnesses and evidence, the jury returned a verdict
in favor of Atlantic. The district court entered final judgment in accordance with
the jury verdict, and Southern timely appealed.
       There are two primary issues on appeal: (1) whether there is any evidence
to support the jury’s finding that Atlantic did not discriminate against Southern
on the basis of his race; and (2) whether the magistrate judge abused her
discretion in conducting discovery.1 Neither of these arguments supports a
reversal of the judgment below, and as a result, we affirm.
                              I. Sufficiency of the Evidence
       Southern’s first claim essentially challenges the sufficiency of the evidence
supporting the jury verdict. In his brief, Southern erroneously adopts the
standard of review that this court uses to evaluate a grant or denial of summary
judgment. He also asks this court to apply the framework set forth in McDonnell


       1
          In response to Southern’s contentions, Atlantic argues that this appeal should be
dismissed because Southern failed to identify any issues on appeal or argue that the district
court committed reversible error in violation of Federal Rule of Appellate Procedure 28(a)(5).
However, Southern is proceeding pro se on appeal and his brief must be “afforded liberal
construction.” Johnson v. Quarterman, 479 F.3d 358, 359 (5th Cir. 2007). We thus treat
Southern’s brief as advancing a challenge to the sufficiency of the evidence and proceed to the
merits of his appeal. See, e.g., Dilworth v. Cont’l Constr. Co., Inc., 282 F. App’x 330, 333 (5th
Cir. 2008).

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Douglas to evaluate his discrimination claim against Atlantic. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) (adopting a burden-shifting
approach to evaluate discriminatory-treatment claims). However, as this case
comes to us after a full trial on the merits, our review should be focused “on
whether the record contains sufficient evidence to support the jury’s finding of
no race or sex discrimination – not on [Southern’s] prima facie case or the
McDonnell Douglas framework.” Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d
985, 993 (5th Cir. 2008).
      In addition, since Southern failed to raise this challenge at trial through
a Federal Rule of Civil Procedure 50(a) motion for judgment as a matter of law,
we review the judgment below for plain error. See, e.g., Shepherd v. Dallas
Cnty., 591 F.3d 445, 456 (5th Cir. 2009). On plain error, reversal is only proper
“if the judgment complained of results in a ‘manifest miscarriage of justice.’”
Stover, 549 F.3d at 995 (citation omitted). In other words, “the question before
this court is not whether there was substantial evidence to support the jury
verdict, but whether there was any evidence to support the jury verdict.”
Shepherd, 591 F.3d at 456 (quoting Polanco v. City of Austin, 78 F.3d 968, 974
(5th Cir. 1996)). “If any evidence supports the jury verdict, the verdict will be
upheld.” Stover, 549 F.3d at 995 (quoting United States ex rel. Wallace v.
Flintco, Inc., 143 F.3d 955, 964 (5th Cir. 1998)).
      The record reveals that there was sufficient evidence to support the jury’s
verdict. At trial, the jury saw Atlantic’s Employee Disciplinary Reports that had
been completed after each of Southern’s accidents, and heard the testimony of
Atlantic’s plant manager and Chief Executive Officer regarding those accidents.
Both the plant manager and the CEO testified that Southern’s lack of attention
while driving and disregard for safety raised serious questions about Southern’s
competence that justified his termination. The plant manager also testified that
Southern’s termination resulted from “him tearing down the power lines,” which

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                                  No. 11-60755

demonstrated a “lack of concern for his self [sic] and people around him.” This
evidence, when considered as a whole, was sufficient for the jury to conclude that
Atlantic terminated Southern for his poor performance on the job, not because
of his race.
                                  II. Discovery
      The second issue on appeal is whether the magistrate judge abused her
discretion by failing to provide Southern with the discovery relief he requested
– the production of reports and logs that allegedly supported his complaint that
fumes from the truck he was driving caused him to get into the second accident.
At the end of discovery, Atlantic told Southern and the court that it was unable
to locate these documents since the company’s record retention policy called for
the destruction of log sheets and maintenance records after six months, and
Southern did not file suit until nearly a year after his termination.
Furthermore, shortly after Southern’s termination, Atlantic was sold to another
company called Safety-Kleen, and the only records that were transferred during
the sale were those that were required to be preserved by law.
      Once Southern had been notified that Atlantic could not find the
documents, he did not move to compel discovery, but instead requested that the
magistrate judge extend discovery to depose Atlantic’s former plant manager
and its Chief Executive Officer. Absent a motion to compel from Southern, the
magistrate judge did not abuse her discretion in proceeding to trial without
these documents.     This court “review[s] alleged discovery errors for abuse of
discretion and will order a new trial only where a defendant demonstrates
prejudice to his substantial rights.” United States v. Doucette, 979 F.2d 1042,
1044–45 (5th Cir. 1992). Since Southern never filed a motion to compel the
production of Atlantic’s records and the magistrate judge provided Southern
with an alternative means to seek the information he desired regarding the



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                                No. 11-60755

truck’s fumes by extending discovery to allow for additional depositions,
Southern failed to show prejudice to his substantial rights.


                               III. Conclusion
      There is no indication that the evidence supporting the verdict against
Southern was insufficient or that the magistrate judge abused her discretion
during discovery. We therefore AFFIRM the judgment below.




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