     Case: 09-30857     Document: 00511208749          Page: 1    Date Filed: 08/19/2010




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

                                                  FILED
                                                                           August 19, 2010

                                     No. 09-30857                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LIONEL H. IRONS; SETH MARTIN,

                                                   Plaintiffs - Appellants
v.

AIRCRAFT SERVICE INTERNATIONAL, INC., doing business as Aircraft
Service International Group,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-9539


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellants Lionel Irons (“Irons”) and Seth Martin (“Martin”) appeal the
district court’s grant of summary judgment on their racial discrimination and
retaliation claims against their former employer, appellee Aircraft Service
International Group (“ASIG”). Appellants also raise several issues related to
various evidentiary rulings and the jury’s ultimate verdict in the subsequent



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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trial addressing their hostile work environment claim. Additionally, ASIG has
filed a motion to strike portions of appellants’ briefing, and appellants’ have filed
a motion to strike portions of ASIG’s motion. We AFFIRM the judgment of the
district court, GRANT ASIG’s motion to strike, and DENY appellants’ motion to
strike and motion to file a supplemental brief.
               I. FACTUAL & PROCEDURAL BACKGROUND
       ASIG provides commercial aviation services to major airlines and airports,
including fueling, ramp service, cargo handling, and fuel facility maintenance.
Appellants, both African-Americans, claim that while employed with ASIG, they
were discriminated against on the basis of race, were subjected to racial
harassment, and were retaliated against in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 1981, and the Louisiana Employment Discrimination
Law.       Martin and Irons were both employed by ASIG at New Orleans
International Airport. Martin was employed as a fuelman. His duties included
fueling aircraft operated by commercial carriers. Irons was employed as a fuel
farm operator and was promoted to lead fuel farm agent. In this role, Irons was
responsible for all of the incoming and outgoing fuel at the airport.
A. The Bonus
       Both Martin and Irons state that they reported for work in the wake of
Hurricane Katrina to assist in any way they could. Both Martin and Irons also
testified in their depositions that they spent their time after Katrina assisting
with fueling operations for Signature Flights (“Signature”).               Signature, a
separate, “sister” company of ASIG owned by the same parent corporation,
provides aviation services to corporate and other private clients. Appellants
testified that several white individuals employed by Signature received bonuses
for their post-storm efforts, but they, as ASIG employees, did not.1 Martin states


       1
       In their appellate briefing, appellants contend that they offered evidence that two
ASIG employees received bonuses after the storm. For Martin, appellants cite his deposition

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he complained to Ronald Crouch (“Crouch”) about ASIG’s failure to give him a
bonus for his post-Katrina efforts.2 Martin also states that he contacted Alton
Adams (“Adams”), ASIG’s general manager, about the bonus issue.                        Irons
testified that he contacted various members of ASIG’s management personnel
including Crouch, Adams, Landry Mathieu (“Mathieu”), and Terry Woodward
(“Woodward”) about the bonus but did not receive a satisfactory explanation
other than that ASIG did not give bonuses for the post-Katrina work of its
employees.3
B. The Promotions
       Both Martin and Irons allege they were required to complete extra
administrative steps to receive promotions. Irons claims he was required to
prepare a letter of interest before being considered for a promotion to lead fuel
agent. After writing the letter, Irons was promoted. Irons testified that several
white employees in other departments were not required to write similar letters
to receive promotions. Martin also alleges he was unfairly required to prepare
a letter of interest before being designated a temporary lead fuel agent. Martin
prepared the letter as requested and was given the temporary promotion.




as competent summary judgment evidence of this fact. Yet when asked “[d]o you know of any
ASIG employee . . . who received a bonus [for working after Katrina]?” in the cited testimony,
Martin responded, “To the best of my knowledge, I can’t answer that question. To the best of
my knowledge, I don’t know.”
       Appellants’ brief directs the court to Irons’s deposition testimony as well. But when
asked if he was aware of any ASIG employees receiving a bonus, Irons testified, “Not ASIG.”
Appellants have failed to direct the court to any other summary judgment evidence
establishing or even supporting an inference that the two ASIG employees mentioned by name
in the briefing received Katrina-related bonuses from ASIG.
       2
       Appellants cite no record evidence suggesting Martin told Crouch that he felt the
bonus was withheld for racial reasons.
       3
       Appellants cite no record evidence suggesting Irons told Crouch, Adams, Woodward,
or Mathieu that he felt the bonus was withheld for racial reasons.

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      Martin also alleges he was passed over for two permanent promotions
during his time at ASIG on account of his race. He claims he was never given
the opportunity to compete for a position as operations manager or for a position
as training manager. Martin testified that the operations manager position
would have constituted a three-level promotion above his then-current position
and the training manager promotion would have constituted a two-level
promotion.    Martin conceded that he never asked or inquired about the
possibility of either promotion.
C. The Terminations
      1. Martin
      In July 2006, Dale Cancienne (“Cancienne”), an employee of United
Airlines (“United”), claims he saw Martin prefueling an airplane in violation of
company policy.     Cancienne approached Martin, who denied prefueling the
plane; Martin contends he had only hooked up the fuel hose to prepare to fuel
the plane. Cancienne reported the incident to Don Hardison, United’s general
manager, who contacted Crouch. Crouch asked Martin’s supervisor, Mathieu,
to look into the matter, and Mathieu counseled Martin regarding prefueling a
short time later. As part of that counseling, Mathieu reviewed United’s fueling
procedure with Martin. The next day, Cancienne again reported he saw Martin
prefueling an airplane. Martin claims Cancienne confronted him and said, “You
people don’t know what you’re doing.” Cancienne reported the second incident
to ASIG, and Hardison sent a letter to Crouch requesting that Martin not be
allowed to fuel United planes. As a result, Crouch terminated Martin on July
20, 2006. ASIG informed Martin that he was terminated for violating fueling
procedures.
      2. Irons
      As a fuel farm operator, Irons was responsible for monitoring incoming
and outgoing fuel. Irons testified that he had been trained on how to perform

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these tasks at the outset of his employment. On August 8, 2002, Irons was
suspended without pay for three days because he failed to follow fueling
procedures by leaving the premises during an ongoing pipeline operation. From
May 2002 to June 2005, Irons received three additional written warnings. On
November 9, 2006, Irons received another write-up—this time for failing to
properly maintain records.       Approximately one month later, Irons was
suspended for two days for failing to conduct a pipeline test. At that time, Irons
was warned that further failures to adhere to ASIG policy would result in his
termination. Finally, a memorandum describing Irons failure to follow daily
close-out procedures was added to his file on March 5, 2007.
      In September 2007, Irons was involved in a fuel spill. The gauges and
emergency shut off for the fuel tank had not been working for some time. ASIG
found after an investigation that Irons did not follow proper fueling procedures
and was responsible for the spill. Irons admitted during the investigation that
he got “sidetracked,” left the area to go to the bathroom, fill out paperwork, and
make phone calls—all in violation of ASIG policy.           Crouch and Mathieu
investigated the cause of the spill, and, after consulting with Teresa Hoien,
ASIG’s Human Resources representative, Crouch discharged Irons on September
24, 2007, for ignoring ASIG’s safety policies.
D. The Noose Incident
      At trial, Martin and Irons testified that they saw a noose hung around a
chocolate milk bottle near a fuel rack at the ASIG facility. They testified that
they, together with ASIG union representative Myron Roberts (“Roberts”),
observed the noose on a weekend sometime between December 2005 and
January 2006. ASIG presented evidence demonstrating that Irons, Martin, and
Roberts had not worked together on a weekend during that period. Roberts then
testified that the noose incident occurred in September 2005.



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         Appellants testified they brought the noose incident to the attention of
ASIG management. All of the individuals they allegedly informed testified that
they were never told about the noose.
E. The EEOC Charges
         Martin initiated an EEOC charge of discrimination and retaliation on July
11, 2006. His EEOC charge was formally filed on October 4, 2006. In his
deposition, Martin could not recall if he told any ASIG manager that he had filed
an EEOC charge.4
         Irons also initiated an EEOC charge of discrimination and retaliation on
July 11, 2006. His EEOC charge was formally filed on September 12, 2006.
Irons testified that he did not bring the EEOC charge to the attention of anyone
in management.
F. Proceedings in the District Court
         On December 17, 2007, Martin and Irons brought suit alleging claims of
discrimination on the basis of race, racial harassment, and retaliation in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the Louisiana
Employment Discrimination Law. ASIG moved for summary judgment on all
claims. On August 12, 2009, the district court granted summary judgment in
favor of ASIG on appellants’ disparate treatment and retaliation claims. The
district court denied ASIG’s motion on appellants’ hostile work environment
claim.
         The hostile work environment claim proceeded to a jury trial. During voir
dire, appellants raised a Batson challenge with respect to ASIG’s use of
peremptory strikes to remove Juror 1 and Juror 5, both African-American



       4
        In their appellate briefing, appellants contend Martin “brought his E.E.O.C. charge
to Adams attention,” but do not provide any citation to record evidence in support of that
proposition. The record cite they do provide references Martin’s deposition testimony stating
that he did not recall if he told anyone at ASIG about the EEOC charge.

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individuals. Counsel for ASIG offered justifications for the exercise of both
strikes. First, ASIG’s counsel explained that Juror 5 was struck because counsel
thought he saw a connection or smile between the juror and one of the
appellants. Second, he explained that he struck Juror 1 because she appeared
disinterested and he was concerned she would be inattentive.                     Appellants’
counsel did not challenge the reasons given or offer other evidence suggesting
the reasons were pretextual. The district court stated that it agreed that Juror
1 seemed disinterested and that it had observed a “discomforting personal
connection” between Juror 5 and one of the appellants. Accordingly, the district
court denied both Batson challenges.
       After a two-day trial, the jury returned a verdict for ASIG on appellants’
hostile work environment claim. The district court entered judgment the next
day. Appellants timely appealed.
                                    II. DISCUSSION
       Appellants appeal: 1) the district court’s grant of summary judgment on
their race-based discrimination and retaliation claims; 2) several alleged
evidentiary errors in the trial on their hostile work environment claims; 3) the
district court’s denial of their Batson challenge as to two African-American
jurors; and 4) the jury’s verdict on their hostile work environment claim.5
A. The District Court’s Grant of Summary Judgment



       5
         Following the close of briefing, ASIG moved to strike several portions of appellants’
briefs. Specifically, ASIG moved to strike: 1) all reference to a mixed motive theory of
discrimination; 2) all assertions that ASIG’s failure to give Irons a pay raise constituted a
retaliatory action; 3) all allegations that Martin was passed over for a promotion to temporary
lead position on “several” occasions; and 4) all allegations that Martin was denied a promotion
to permanent lead position. We grant ASIG’s motion as none of these claims were presented
in the district court. Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004) (arguments
not raised in the district court are waived).
        Appellants, in response to ASIG’s motion, moved to strike a portion of ASIG’s motion
to strike. That motion is denied. We also deny appellants’ untimely “Motion for Leave to File
Supplemental Brief,” filed August 1, 2010.

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      Appellants’ first appeal the district court’s grant of summary judgment on
their race-based discrimination and retaliation claims in favor of ASIG. A grant
of summary judgment is reviewed de novo, applying the same standard as the
district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir. 2006). Our
inquiry “is limited to the summary judgment record before the trial court.”
Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009) (internal
quotation marks omitted). We view the evidence in the light most favorable to
the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), and the movant has the burden of showing this court that
summary judgment is appropriate, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).   Summary judgment is appropriate where the competent summary
judgment evidence demonstrates that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Bolton, 472
F.3d at 263; see Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if
a reasonable jury could enter a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
      1. Race-based Discrimination
      Appellants contend that the district court erred in granting ASIG’s motion
for summary judgment on their race-based discrimination claims related to the
post-Katrina bonus payments, ASIG’s letter-writing promotion requirements,
ASIG’s failure to promote Martin to operations manager or training manager,
and each of their discharges. To establish a prima facie case of employment
discrimination, appellants were required to show by a preponderance of the
evidence that: (1) they are members of a protected class; (2) they were qualified
for their positions; (3) they were subjected to an adverse employment action; and
(4) they were treated less favorably than similarly situated employees. Bryan
v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). The parties do not
dispute whether Martin and Irons were members of a protected class or whether

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they were qualified for the positions they occupied at ASIG (although the parties
do dispute Martin’s qualification for the positions to which he sought promotion,
as noted below). As such, our analysis with respect to each claim is focused
primarily on the third and fourth elements of the prima facie case.
            i. Bonus
      No ASIG employee received a bonus from ASIG for their post-Katrina
efforts at the New Orleans airport. All of the evidence in the record states that
bonuses were paid exclusively to Signature’s employees. Martin testified he did
not know whether any ASIG employees received a bonus for post-Katrina work,
and Irons affirmatively stated that only Signature employees received such a
bonus. Crouch received a bonus, but he was a Signature employee at the time
Katrina struck New Orleans, and he received his bonus from Signature.
Similarly, appellants argue that Joseph Giarratano (“Giarratano”), ASIG’s
former training manager, received a storm bonus. The record evidence cited by
appellants merely states that Giarrantano received “a bonus.”              Other
uncontroverted record evidence reveals that Giarratano’s bonus was paid by
ASIG as a reward for overall safety performance at the facility rather than any
storm-related work. Consequently, appellants have failed to raise a genuine
issue of material fact as to whether similarly situated ASIG employees were
treated more favorably by ASIG. As such, summary judgment was appropriate
on appellants’ bonus claims.
            ii. The Letter-Writing Requirement
      Appellants both contend that ASIG discriminated against them on the
basis of their race by requiring them to prepare letters of interest before
promoting them to new positions. Irons was required to prepare a letter before
being promoted to lead fuel farm operator. Martin was required to prepare a
letter before being promoted to temporary lead fueler. Both Martin and Irons
received the requested promotions upon tendering the required letter.

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       As the district court found below, appellants’ claims flowing from ASIG’s
letter-writing requirement fail because requiring an employee to undertake such
a task does not constitute an adverse employment action. “[A]n employment
action that ‘does not affect job duties, compensation, or benefits’ is not an
adverse employment action.” Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th
Cir. 2004) (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575
(5th Cir. 2003)). As such, we find the district court did not err when it granted
summary judgment on appellants’ claims related to the letter-writing
requirement.
              iii. Martin’s Promotions Claims
       In addition to the letter-writing claim, Martin also alleges ASIG
discriminated against him on the basis of race when it failed to promote him to
training manager or operations manager. Even assuming Martin was qualified
for these positions6 , Martin concedes that he never expressed interest in either
position to anyone at ASIG. Failure to apply for a disputed promotion will bar
a “failure to promote” claim absent a showing that such an application would
have been a futile gesture. Shackelford v. DeLoitte & Touche, LLP, 190 F.3d
398, 406 (5th Cir. 1999); see also Grice v. FMC Techs. Inc., 216 F. App’x 401, 406
(5th Cir. 2007) (unpublished) (finding no prima facie showing of “failure to
promote” where employee failed to apply for the promotion at issue). The “futile



       6
         Martin’s qualifications for either position are dubious based upon the available record
evidence. Martin does not dispute that the operations manager position would have
constituted a three-level promotion above his then-current position and the training manager
promotion would have constituted a two-level promotion. Moreover, the district court found
that Martin failed to dispute that he was unqualified for either position, and Martin has
offered nothing meaningful on appeal to suggest he was qualified. Consequently, it is doubtful
that Martin has carried his prima facie burden of demonstrating that he was qualified for a
promotion he did not receive. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th Cir.
2004) (plaintiff must show she applied for a position for which she was qualified as part of the
prima face case). Nonetheless, we do not reach this issue as Martin’s failure to apply for either
job defeats his claim.

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gesture” exception will only apply where “the applicant for the promotion was
deterred by a known and consistently enforced policy of discrimination.”
Shackelford, 190 F.3d at 406. Martin argues his claim survives under the “futile
gesture” exception.         Specifically, he argues that “he was not given the
opportunity to apply because ASIG approached who they wanted for the
positions and filled them.” This allegation, without more, does not suggest “a
known and consistently enforced policy of discrimination” in ASIG’s promotion
system. As such, Martin’s failure to apply is fatal to his promotion-related
discrimination claims.
       iv. Discharge
       Both appellants allege that they were discharged whereas similarly
situated white employees were not subject to similar punishment for similar
infractions. Even assuming Martin and Irons can make out a prima facie case 7 ,
they have failed to create a genuine issue of material fact as to ASIG’s proffered
reasons for termination. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1090       (5th   Cir.   1995)   (“[I]f   the   defendant    has    offered    a   legitimate
nondiscriminatory reason for its action, the presumption of discrimination
derived from the plaintiff's prima facie case simply drops out of the picture . . .
.” (internal quotation marks omitted)). To meet their burden, appellants were
required to present evidence showing either intentional discrimination or the
falsity of the employer’s explanation. Bryan, 375 F.3d at 360. Importantly,
“[t]he question is not whether an employer made an erroneous decision; it is

       7
         Again, appellants’ appear unable to make out a prima facie case under the facts
presented on this record. As part of their prima facie showing, appellants were required to
show either: (1) they were replaced by an individual outside their protected class; or (2) other
similarly situated employees were treated more favorably. Bryan, 375 F.3d at 360. Both
Martin and Irons were replaced by African-Americans. Additionally, as the district court
explained in detail below, appellants have not shown disparate treatment because they have
not adduced any evidence showing that white employees were not reprimanded or discharged
for engaging in “essentially identical” conduct. See Barnes v. Yellow Freight Sys., Inc., 778
F.2d 1096, 1101 (5th Cir. 1985).

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whether the decision was made with discriminatory motive.” Mayberry, 55 F.3d
at 1091.
       ASIG claims it terminated Martin for violating fueling procedures by
prefueling United aircraft on two occasions. Martin vociferously contests the
conclusion that he was in fact prefueling either plane.                 Yet he offers no
competent summary judgement evidence creating an issue of material fact on
the question of whether ASIG believed he had prefueled the planes and
terminated him upon that honestly held belief after receiving two complaints
from a customer. Accordingly, the district court correctly granted summary
judgment on Martin’s disparate impact discharge claim.
       Similarly, Irons has offered no evidence suggesting ASIG’s stated reasons
for terminating him were pretextual. ASIG asserts that it terminated Irons for
causing a major fuel spill by failing to properly perform his job duties. Irons
admits that he was previously cited by ASIG for leaving the fueling area during
fueling operations. Irons admits he got “sidetracked” and left the area again
during fueling operations on the day of the spill. Irons has not directed the court
to any record evidence suggesting or supporting an inference that ASIG fired
him for any reason other than his role in the fuel spill incident. As such, the
district court did not err in granting summary judgment on Irons’s disparate
impact discharge claim.
       2. Retaliation
       In addition to raising disparate impact claims, Martin and Irons also
alleged that their terminations were retaliatory.8 Like the district court, we
assume for the sake of argument that appellants have established a prima facie
case of retaliatory termination and turn to ASIG’s proffered reasons. As to


       8
         Like the district court, we find that appellants’ other retaliation claims were
abandoned in the court below. Accordingly, we restrict our analysis to retaliatory termination
as the only remaining claim.

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Martin, ASIG pointed to his violations of fueling procedures as the grounds for
his termination. The uncontroverted evidence demonstrates that ASIG received
a report from a customer that Martin was prefueling planes, required Martin to
be immediately counseled and retrained by his supervisor, and received a second
report that Martin was prefueling planes again the very next day coupled with
a demand from the customer that Martin not fuel its airplanes. Though Martin
again disputes whether he was prefueling the aircraft in question, Martin has
failed to adduce any evidence supporting an inference that ASIG’s proffered
justification was pretextual for the reasons set forth in detail above.
Accordingly, the district court properly granted summary judgment.
      Similarly, Irons has failed to offer any evidence suggesting ASIG’s stated
reasons for terminating him were pretextual. ASIG claims it fired Irons for
causing a major fuel spill. Irons has not disputed that he was responsible for the
fueling operation that produced the spill, that he was away from the fueling area
at the time of the spill, and that he had been previously disciplined for a similar
infraction. Irons asserts that several write-ups he received after filing his EEOC
charge were fabricated, and, as a result, he has created a fact issue on pretext
regarding the reasons for his termination. First, his reliance on our decision in
Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992), is misplaced. Unlike
the plaintiff in Shirley, Irons was not suddenly subject to complaints about his
work performance only after engaging in protected activity. Id. at 42. The
record is replete with instances of formal discipline spanning Irons’s time at
ASIG. Moreover, even if the write-ups at issue were the first Irons had received,
his argument is unavailing as he has adduced no evidence disputing the grounds
upon which he was disciplined after engaging in protected activity.            See
Newsome v. Collin County Cmty. College Dist., 189 F. App’x 353, 356 (5th Cir.




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2006) (unpublished)9 (deeming claims of false write-ups insufficient to create a
genuine issue of material fact where party “did not introduce evidence to rebut
any of the incidents for which she received a written warning”). Accordingly, the
district court properly granted summary judgment on Irons’s retaliation claims.
B. Alleged Jury Trial Errors
       1. Evidentiary Claims
       Appellants raise three claims of error based on evidentiary rulings made
by the district court during the trial on their hostile work environment claim.
We review a district court’s evidentiary rulings for abuse of discretion. Alaniz
v. Zamora-Quezada, 591 F.3d 761, 774 (5th Cir. 2009). We address each claimed
error in turn.
       i. Admission of ASIG’s Time Record Summaries
       Appellants first contend the district court erred when it admitted two
summaries of ASIG’s employee time records into evidence. The summaries were
prepared from time records also admitted as evidence during the course of the
trial.10 They were offered in response to Irons’s testimony that he observed the
noose on a weekend between December 2005 and January 2006 while working
with Martin and Roberts. ASIG submitted the summaries in conjunction with
the time records as impeachment evidence to show that Martin, Irons, and
Roberts had never worked together on a weekend during that time period.
Appellants have identified no discrepancy between the original records and the
data included in the summary. Accordingly, the district court’s decision to admit



       9
        Although an unpublished decision is not precedent, it is cited for its factual similarity
and persuasive reasoning.
       10
          Though mentioned in passing in the opening brief by exhibit number, appellants
make no arguments regarding the district court’s admission of the underlying time record
reports. Accordingly, any arguments regarding the admissibility of the underlying records
themselves have been waived. Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) (“All issues
not briefed are waived.”)

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the summaries fell within its broad discretion under Federal Rule of Evidence
1006, see Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir. 1982)
(admission of summaries proper where appellant failed to identify any
discrepancy between original records admitted into evidence and the
representation of that data in the disputed summaries),11 and, in any event,
would be harmless error.
       ii. Exclusion of Appellants’ Audio Tape
       Next, appellants contend the district court erred when it excluded a CD
containing five tape-recorded conversations between appellants and various
ASIG employees. The district court excluded the CD because, among numerous
other reasons, the intelligible portions of the taped conversations were irrelevant
to the remaining claims.           Upon review, the tapes contain absolutely no
information related to the noose incident, the “you people” comment, or any
other evidence supporting appellants hostile work environment claim.
Accordingly, the district court did not abuse its discretion by excluding the CD
on relevance grounds.12 Perez v. Tex. Dep’t of Crim. Justice, 395 F.3d 206, 210
(5th Cir. 2004) (“To be admissible, evidence must be relevant.”); see also F ED. R.
E VID. 402.
       iii. Exclusion of Appellants’ Aircraft Photograph
       Finally, appellants claim the district court erred when it excluded an
unauthenticated photograph of an unidentified aircraft at trial. The district
court acted within its broad discretion by excluding the photograph. See Ellison



       11
         We also note that appellants contend on appeal that they were offered insufficient
time to review the summaries. At trial, appellants did not object to the admission of the
summaries on these grounds. That fact aside, the district court specifically provided for a
period of time during the trial day for appellants to review the new material with their
counsel.
       12
         As we find the evidence was properly excluded on relevance grounds, we need not
address the district court’s laundry list of other reasons for refusing to admit the CD at trial.

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v. Conoco, Inc., 950 F.2d 1196, 1206 n.12 (5th Cir. 1992) (declining to find an
abuse of discretion where evidence excluded on the basis of counsel’s fault).
       2. Batson
       Appellants attempt to appeal the district court’s denial of their Batson
challenges as to Jurors 1 and 5. During voir dire, appellants failed to contest or
dispute ASIG’s proffered reasons for striking these jurors. Accordingly, their
Batson claims have been waived. See Wright v. Harris County, 536 F.3d 436,
438 (5th Cir. 2008) (“[An appellant] waive[s] his Batson claim, however, by
failing to rebut the [opposing party’s] reasons for striking [a contested juror] at
the time he raise[s] his claim.”).
       3. “Jury Error”
       Finally, appellants claim the jury “erred”13 when it found for ASIG on the
hostile work environment claim presented at trial. In essence, they argue that
the jury simply got it wrong. In the absence of any claim of error on the part of
the trial court, we have no error to correct, as this court cannot usurp the jury’s
fact-finding role. Brennan’s Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th
Cir. 2004) (“[T]he court may not make credibility determinations or weigh the
evidence, as those are jury functions.”).
                                 III. CONCLUSION
       For the reasons set forth above, we AFFIRM the district court’s judgment,
GRANT ASIG’s motion to strike, and DENY appellants’ motion to strike and
motion to file supplemental brief.




       13
          Appellants contend that our review of this contention falls under a “clearly
erroneous” standard, while ASIG argues “plain error” review. Appellants’ argument is nothing
more than an invitation to replace the jury’s judgment with our own, which would be
untenable under any standard of review.

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