     Case: 17-20027      Document: 00514312562         Page: 1    Date Filed: 01/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-20027                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 18, 2018
ARLEEN DELARONDE,                                                          Lyle W. Cayce
                                                                                Clerk
                            Plaintiff - Appellee

v.

LEGEND CLASSIC HOMES, LIMITED,

                            Defendant - Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CV-1578


Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Legend Classic Homes, Ltd. (“Legend”) appealed
the district court’s denial of its Rule 50(b) motion for judgment as a matter of
law and the refusal to instruct the jury regarding the meaning of “similarly
situated” in a Title VII employment discrimination case. For the following
reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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   I.     Background
        Plaintiff-Appellee Arleen Delaronde (“Delaronde”) worked as a sales
associate for Legend, a home builder in the Houston area, from May 2010 to
April 2013. The sales communities Legend assigns its associates vary from
higher-priced to lower-priced homes, with different offerings and target
markets. The salaries of Legend’s sales associates are commission-based, set
at two percent of every home sale. Under its at-will employment policy, Legend
retains the right to “demote, transfer, change job duties, and change
compensation at any time with or without notice and with or without cause in
its sole discretion.”
        Delaronde was initially placed at the Legends Trace community in North
Harris County (“Trace”), where she was trained by sales manager Brett Briggs
(“Briggs”). In March 2011, Legend hired Maria Dorman (“Dorman”) and placed
her at Trace with Delaronde.        Delaronde and Dorman entered into a
partnership agreement whereby they shared work and commissions from all
sales made at Trace. In its initial EEOC response, authored by Vice President
of Sales and Marketing, Mark Tollefsrud (“Tollefsrud”), Legend acknowledged
it was not comfortable with that partnership. .
        Although Trace was a challenged neighborhood at the time Delaronde
started working, in 2011 Delaronde had doubled her income and by 2012 the
community was “pretty much booming.” Delaronde became familiar with the
market and developed connections with realtor contacts.      Delaronde had over
$3 million in home sales in 2011, and in 2012 the Trace property realized over
$9 million in net sales.
        On November 20, 2012, Legend hired Marvin Bullard (“Bullard”) as a
sales associate and assigned him to complete training with Briggs at the
corporate offices. On December 7, 2012, Briggs told Delaronde she was being
transferred from Trace to the Deerbrook Estates community (“Deerbrook”) to

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                               No. 17-20027
assist in training a newly-promoted sales counselor. Delaronde believed the
assignment was temporary and that she would eventually return to Trace, as
Briggs told her Deerbrook would be a one-person community once training was
complete. Tollefsrud and Briggs assigned Bullard to take Delaronde’s place at
Trace, where Dorman was assigned to provide Bullard additional training.
      The home prices in the Deerbrook community were the lowest of any
Legend property.     In comparison to Trace’s 2013 sales volume of over
$13 million, Deerbrook’s total sales were just under $3 million. Delaronde
struggled to make sales and sold only one home that made it to a closing.
Delaronde was not provided any additional compensation for training.
      Delaronde was paid $2,000 a month for three months to compensate her
for the transfer and continued to receive residual commission payments for her
sales at Trace. After Delaronde had trouble making sales for the three months,
she asked Legend for an extension of her salary for one pay period. Despite
the sales difficulties, from the time she transferred to Deerbrook until her
resignation four months later, Delaronde made approximately $42,000-
$43,000, which mostly consisted of residual commission payments.
      Delaronde learned her transfer was permanent and realized she would
not be returning to Trace in January 2013, when Briggs offered Delaronde a
reassignment to the Sydney Harbour community to train sales associates
there. Delaronde turned down the offer and resigned in April 2013.
      Five months after her resignation, Delaronde filed an EEOC charge,
claiming sex discrimination and constructive discharge. EEOC failed to act on
the charge and sent Delaronde a right to sue letter. Her ensuing Title VII case
was tried, resulting in a jury verdict in favor of Delaronde. The jury awarded
Delaronde $150,000 in compensatory damages and $150,000 in punitive
damages.     The district court vacated the award of punitive damages, but
upheld the compensatory damages award and denied Legend’s Rule 50(b)

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Motion for Judgment as a Matter of Law. Legend timely appealed the final
judgment.
   II.      Standard of Review
          In reviewing a district court’s denial of a post-verdict motion for
judgment as a matter of law under Rule 50(b), we “use the same standard to
review the verdict that the district court used in first passing on the motion.”
Nobach v. Woodland Village Nursing Ctr., Inc., 799 F.3d 374, 377 (5th Cir.
2015) (internal quotation marks, citation, and alteration omitted). “[T]he legal
standard is whether a ‘reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.’” Id. at 377-78 (quoting
Fed. R. Civ. P. 50(a)(1)). Granting judgment as a matter of law is appropriate
only where the facts and inferences point “so strongly and overwhelmingly in
the movant’s favor that reasonable jurors could not reach a contrary
conclusion.” Omnitech Int’l., Inc. v. Clorox Co., 11 F.3d 1316, 1323 (5th Cir.
1994). This court reviews the denial of a motion for judgment as a matter of
law in an “especially deferential” manner. Flowers v. S. Reg’l Physician Svcs.,
Inc.,     247 F.3d 229, 235 (5th Cir. 2001)(internal quotation and citation
omitted).
         A district court’s refusal to provide a requested jury instruction is
reviewed for abuse of discretion. United States v. McClatchy, 249 F.3d 348,
356 (5th Cir. 2001).
   III.     Analysis
            a. Sex Discrimination
         Legend argues it is entitled to judgment as a matter of law under
Rule 50(b) because (1) Delaronde failed to prove that Legend’s articulated
reason for her transfer was a pretext for discrimination, and (2) Delaronde did
not offer any legally sufficient evidence to show her transfer was based on her
sex.

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      When a Title VII case has been tried on the merits, “the adequacy of a
party’s showing at any particular stage of the McDonnell Douglas ritual is
unimportant,” and this court focuses on “whether the record contains evidence
upon which a reasonable trier of fact could have concluded as the jury did.”
Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993); see also
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S. Ct. 2742, 2749 (1993)
(noting the McDonnell Douglas framework is “no longer relevant” once the
defendant has carried its burden of production). Here, there was enough
evidence presented at trial – albeit largely circumstantial – from which the
jury could conclude Legend engaged in illegal discrimination when it
transferred Delaronde.
      To begin, trial testimony established Delaronde’s sales record was good,
she was successful and had real estate experience. Further, the transfer to
Deerbrook was adverse to her actual and potential earnings. Briggs testified
Delaronde would never have made the same amount of money at Deerbrook as
she did at Trace, and Delaronde herself explained the challenging clientele and
credit issues in the Deerbrook area, which had the lowest home prices in the
company and made sales more difficult.
      Legend homes in on its argument that she did not present legally
sufficient evidence that she was treated differently from similarly situated
men in nearly identical circumstances. In a Title VII case, a plaintiff may show
she was treated less favorably than other employees who are “similarly
situated” to the plaintiff. Lee v. Kansas City So. Ry. Co., 574 F.3d 253, 259 (5th
Cir. 2009). This court has required plaintiffs proffering fellow employees as
comparators to demonstrate the actions at issue were taken “under nearly
identical circumstances.” Id. at 260 (internal quotation marks and citation
omitted). Nevertheless, the inquiry as to which employees are considered
“similarly situated” is “case-specific” and requires an analysis of “the full

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variety of factors that an objectively reasonable…decisionmaker would have
found relevant in making the challenged decision.”          Lindquist v. City of
Pasadena, 669 F.3d 225, 234 (5th Cir. 2012) (quoting Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007)).
      Our review of the record persuades us that the record contains sufficient
evidence for a reasonable trier of fact to find Bullard was a similarly situated
comparator who was treated more favorably than Delaronde. Delaronde’s and
Bullard’s job titles, responsibilities, and equivalent experience were close
enough for a reasonable factfinder to view Bullard as being “similarly
situated.” Further, the circumstances and outcomes surrounding Delaronde’s
and Bullard’s transfers were sufficient for a reasonable factfinder to find
Bullard was treated more favorably than Delaronde.
       Legend’s attempts to explain how it treated the plaintiff were
inconsistent and could be viewed by a reasonable juror as pretextual for a
discriminatory purpose. In its EEOC response and at trial, Legend variously
claimed the transfer was a staffing change, a promotion, a way to dismantle
the partnership between Delaronde and Dorman, or for training needs. Since
pretext can be established by showing the “proffered explanation is false or
unworthy of credence,” Laxton, 333 F.3d at 578 (internal quotation marks and
citation omitted), Legend’s shifting reasons for transferring Delaronde furnish
additional support for the verdict.
       It is not this court’s role simply to disagree with a jury verdict. Instead,
we must uphold the verdict unless strong grounds for granting judgment as a
matter of law existed. Because the record contains sufficient evidence for a
reasonable jury to have found sex discrimination, the district court did not err
in refusing to set aside the verdict.




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                             No. 17-20027
         b. Constructive Discharge
      We do not need to reach the issue of whether Delaronde was
constructively discharged. Both parties recognized during oral argument that
the constructive discharge issue is not a freestanding claim for relief; it is
merely an alternative allegation of an adverse employment action that
constituted illegal sex discrimination.
      Because the jury’s award of compensatory damages was based on
Delaronde’s wages and benefits from April 1, 2013 to November 18, 2014, both
her discrimination and constructive discharge claims were considered in
arriving at the compensatory damage award amount. By affirming the finding
that Delaronde’s transfer constituted illegal sex discrimination, we have a
sufficient basis to affirm the jury’s award of $150,000 in compensatory
damages—regardless of whether we affirm or reverse the constructive
discharge finding. In addition, neither party sought a remand for a new trial
on damages, so we are not inclined to order one.
         c. The Jury Instruction
      Legend alternatively asserts this court should grant a new trial because
the district court erred in not charging the jury with Legend’s proposed
instruction on the definition of “similarly situated,” and the charge failed
adequately to describe the burden necessary to prevail on a claim of sex
discrimination. Legend further contends because the district court refused its
proposed instruction, the jury was not properly instructed or guided in its
deliberations. During deliberations, the jury asked: “Does similarly qualified
person mean: lesser or equally situated or only equally situated? Could we have
more clarification on this item?” The district court’s response was that the jury
had “received all appropriate instructions” and the jury was to return to its
deliberations.


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                             No. 17-20027
      Given a district court’s “substantial latitude in crafting jury
instructions,” the refusal to give a [requested] jury instruction will only
constitute reversible error “‘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 v. Gulf Coast Medical Personnel LP, 363 F.3d 568,
578 (5th Cir. 2004) (quoting McClatchy, 249 F.3d at 356). A district court does
not abuse its discretion if it refuses to grant a new trial on the ground that “a
jury instruction, although correct, was not as clear as it could have been.”
Seibert v. Jackson Cnty., 851 F.3d 430, 439 (5th Cir. 2017).
      The jury instruction Legend proposed as to the meaning of “similarly
situated” was the following:
      “Similarly situated” employees are employees who are treated
      more favorably in “nearly identical” circumstances. Similarly
      situated individuals must be “nearly identical” and must fall
      outside the Plaintiff’s protective class—i.e., they must be male.
      Significantly, individuals must share the same capabilities to be
      considered “similarly situated.” Put another way, “[e]mployees
      with different capabilities are not considered to be nearly
      identical.” Consistent with that principle, individuals who are
      truly “similarly situated” will have the same level of experience
      and     seniority.   Proper     comparators     must    also   be
      contemporaneously employed at the same location as the plaintiff.

      As previously discussed, “similarly situated” comparator employees in
the Title VII discrimination context means employees who are “nearly
identical.” Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F. 3d 507, 514
(5th Cir. 2001). Legend’s proposed instruction, while based on Fifth Circuit
precedent, ignores the “case-specific” inquiry the Fifth Circuit has mandated,




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because “[w]hat is relevant in one case might not be relevant in another.”
Lindquist, 669 F.3d at 234.
      The jury was instructed: “To prove unlawful discrimination, Plaintiff
must prove by a preponderance of the evidence that: 1. Defendant transferred
Plaintiff and she was replaced with a similarly qualified person who was not a
member of the protected class or that similarly situated employees outside the
protected class were treated more favorably.” The instruction did not contain
an erroneous suggestion, but substantially covered Delaronde’s burden of proof
in the charge as a whole. In not getting into the weeds of the meaning of
“substantially similar,” the instruction did not misstate the law.
      Furthermore, when a jury is properly instructed regarding the
controlling law and counsel is able to present the jury with inferences it was
permitted to make from the evidence, this court cannot conclude a party was
seriously impaired in presenting its claim. See Kanida, 363 F.3d at 579-80
(finding no reversible error where the district court’s instructions properly
stated the governing law and the party was able to present an argument based
on the court’s instructions). Legend gave closing arguments after the district
court read the charges to the jury and was not only able, but did in fact tailor
its argument to fit the instructions given.
      Because the district court properly instructed the jury on the controlling
law regarding Delaronde’s burden of proof and Legend was not seriously
impaired in its ability to present its arguments, the district court did not err
in refusing Legend’s proposed instruction.
   IV.   Conclusion
      For the foregoing reasons, the JUDGMENT IS AFFIRMED.




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