     Case: 10-50984     Document: 00511687826         Page: 1     Date Filed: 12/07/2011




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

                                                                            FILED
                                                                         December 7, 2011

                                       No. 10-50984                        Lyle W. Cayce
                                                                                Clerk

CHERI ESTRADA,

                                                  Plaintiff - Appellant
v.

THE CITY OF SAN ANTONIO,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-986


Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Cheri Estrada raises two challenges to the district
court’s jury instructions in this Title VII gender discrimination case against her
employer, Defendant–Appellee City of San Antonio. 42 U.S.C. § 2000e, et. seq.
We AFFIRM the take-nothing judgment of the district court for the following
reasons:
        1. Estrada argues that the district court reversibly erred by not giving a
permissive pretext jury instruction informing the jury that they could infer

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-50984    Document: 00511687826      Page: 2    Date Filed: 12/07/2011




                                  No. 10-50984

discrimination if they disbelieved the City’s reasons for transferring Estrada.
While it is true that the district court erred by not submitting such an
instruction, see Ratliff v. City of Gainesville, 256 F.3d 355, 359, 364 (5th Cir.
2001), such error is not grounds for reversal if “[t]he jury was properly instructed
regarding the controlling law and trial counsel was able to present the jury with
the inferences they were permitted to make from the evidence.” Kanida v. Gulf
Coast Med. Pers. LP, 363 F.3d 568, 579 (5th Cir. 2004) (holding that failure to
submit permissive pretext instructions is not reversible error if failure to submit
was harmless). The record clearly demonstrates that the jury was properly
instructed that they could draw inferences based on the evidence presented at
trial and Estrada’s counsel repeatedly informed them that if they disbelieved the
City’s reasons for transferring Estrada, they could find that the City
discriminated against her.     In the absence of any indication of harm and
therefore reversible error, we have no basis for setting aside the judgment.
      2. Estrada also appeals the district court’s refusal to submit her proffered
instructions regarding comparisons with the City’s treatment of two of her male
colleagues. “This Court reviews a district court’s refusal to provide a requested
jury instruction for abuse of discretion.” United States v. McClatchy, 249 F.3d
348, 356 (5th Cir. 2001). We will only reverse for a failure to submit requested
jury instructions if, among other things, “‘the failure to instruct the jury on the
issue seriously impaired the [appealing party’s] ability to present a given
[claim].’” Kanida, 363 F.3d at 578 (quoting McClatchy, 249 F.3d at 256). Here,
Estrada’s entire case focused on comparisons with the City’s differential
treatment of her two male colleagues. Indeed, the district court specifically
instructed the jury that Estrada “claims that male detectives who were not


                                         2
   Case: 10-50984        Document: 00511687826          Page: 3     Date Filed: 12/07/2011




                                        No. 10-50984

removed from the Shooting Team and from the Murder Detail were treated more
favorably than her under nearly identical circumstances.” Estrada’s counsel
repeatedly made arguments and presented evidence to the jury on this theory.
As the district court’s instructions accurately set out the controlling law and
placed no limitations on Estrada’s ability to make her case, we conclude that it
did not abuse its discretion.1
       The judgment of the district court is AFFIRMED.




       1
         Estrada also asserts that the district court erred by failing to submit her proffered
interrogatories on this issue. In the case of rejected interrogatories, the standard is again
abuse of discretion and evaluated in terms of three factors: “(i) whether, when read as a whole
and in conjunction with the general charge the interrogatories adequately presented the
contested issues to the jury; (ii) whether the submission of the issues to the jury was fair; and
(iii) whether the ultimate questions of fact were clearly submitted to the jury.” Goodman v.
Harris Cnty., 571 F.3d 388, 401 (5th Cir. 2009) (internal quotations and citation omitted). For
reasons identical to our conclusion regarding the district court’s ruling on the comparitor
instructions, we find no abuse of discretion regarding the district court’s decision not to submit
Estrada’s interrogatories.

                                                3
