     Case: 16-11802      Document: 00514605440         Page: 1    Date Filed: 08/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 16-11802
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 17, 2018

PLAINSCAPITAL BANK,                                                        Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

KELLER INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:10-CV-926


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:*
       A baby boy sustained massive brain damage from a tainted vaccine.
Over a decade later, his guardian and trustee sued the school district where he
was enrolled for discrimination in violation of the Americans with Disabilities
Act and the Rehabilitation Act. The district court granted judgment as a
matter of law to the school district after finding that the evidence did not show
intentional discrimination. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        No. 16-11802
                  FACTUAL AND PROCEDURAL BACKGROUND
      When a tainted vaccine left him with life-altering brain damage at four
months old, Terrence C. Rideau (known as “T.R.” or “Little T”) 1 became a
qualified individual under the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act (“RA”). He suffers from encephalopathy, which is a brain
disease. He is unable to speak, feed himself, or dress himself; he wears a
diaper. Along with seizures, he suffers from dystonia, which is a physical
ailment that causes his muscles to tense and his body to stiffen.
      In 2001, after litigation against the vaccine manufacturer concluded in
a settlement, T.R. became the beneficiary of a guardianship management trust
that would provide for his lifelong care. The trust, which was funded by the
proceeds of the settlement, was established to provide for T.R.’s health,
education, support, and maintenance. This includes medical treatment,
therapy, equipment, and caregivers. The trustee and guardian of T.R.’s estate
is the plaintiff, PlainsCapital Bank.
      In 2002, Breggett and Terrence Rideau, T.R.’s mother and father,
enrolled T.R. at Keller Independent School District (“Keller” or “Keller ISD”).
Keller had a reputation as having one of the best special education programs
in the area for disabled children. T.R.’s teacher at Keller was Dan Evans, an
instructor with a master’s degree in special education and nearly two decades
of experience teaching disabled students. Evans taught a classroom with all
severely disabled students. The classroom was fairly visible to those on the
outside because an entire wall of the classroom was glass.                        Two para-
professionals worked with Evans in T.R.’s classroom, and other adults
frequently visited the classroom to provide therapy sessions to individual
students. T.R. was seven years old when he enrolled at Keller.


      1   T.R. was 15 years old when this case was filed in district court in 2010.
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                                 No. 16-11802
      Initially, the Rideaus trusted Evans, inviting him to attend T.R.’s
birthday parties and hiring him as T.R.’s babysitter. The record does not
indicate that the Rideaus complained about Evans’s treatment of T.R. for
several years. From 2006 through 2010, however, several incidents occurred
that the Rideaus later alleged were because Evans intentionally mistreated
T.R. These incidents included T.R.’s first episode of dystonia, multiple knee
injuries, a head bump, a broken thumb, and an emergency visit to the hospital
when T.R. was screaming in pain.
      In December 2010, the Rideaus sued Keller, alleging violations of Title
II of the ADA and Section 504 of the RA. At the 2013 trial, the Rideaus argued
that T.R. was denied, among other things, the benefits of a safe school
environment and of physical and occupational therapy. Keller argued that
there was no evidence of intentional discrimination or deliberate indifference.
After a two-week trial, the jury returned a verdict in favor of the Rideaus.
Shortly thereafter, Keller moved to dismiss, arguing that the Rideaus lacked
standing to sue as T.R.’s next friends because PlainsCapital as his trustee was
the proper plaintiff. The Rideaus filed a motion, asking the court “to permit
PlainsCapital to ratify the Rideaus’ actions in prosecuting T.R.’s federal claims
against [Keller].”   The court granted Keller’s motion, denied the Rideaus’
motion, and entered judgment in favor of Keller.
      On appeal, we affirmed the dismissal of the Rideaus’ individual mental
anguish claims, vacated the judgment in Keller’s favor, and reversed the denial
of PlainsCapital’s motion to ratify. Rideau v. Keller Indep. Sch. Dist., 819 F.3d
155, 170 (5th Cir. 2016). On remand, the district court almost immediately
entered a judgment on the jury verdict. Keller then renewed its motion for a
judgment as a matter of law. In a lengthy opinion, the district court granted
the motion because of insufficient evidence of deliberate indifference.        It


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alternatively conditionally granted Keller’s motion for a new trial.           The
plaintiff timely appealed.


                                  DISCUSSION
      The standard of review of a ruling on a Rule 50(a) motion for judgment
as a matter of law (“JMOL”) is de novo. Montano v. Orange Cnty., 842 F.3d
865, 873 (5th Cir. 2016). We review a JMOL using the same standard as the
district court, viewing all the evidence and reasonable inferences in the light
most favorable to the nonmovant. Id. A decision granting the JMOL should
be affirmed if “a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that
issue.” Id. (quoting Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015)).
There is a legally sufficient evidentiary basis for a jury’s verdict if reasonable,
fair-minded, and impartial jurors could reach different conclusions. Delano-
Pyle v. Victoria Cnty., 302 F.3d 567, 572 (5th Cir. 2002).
      On appeal, the plaintiff argues that the grant of a JMOL was error
because there was sufficient evidence that T.R. suffered discrimination based
on his disability and that Keller was legally responsible. It also argues error
in the conditional grant of a new trial, an issue we do not address in light of
our conclusion that there was no error in granting a JMOL.
      We divide our discussion of the plaintiff’s arguments on the JMOL in
two. First, we discuss the legal theory that went to the jury, namely, that
Keller’s responses to numerous acts of mistreatment reflected deliberate
indifference. We then turn to the theory that Keller was vicariously liable for
the teacher’s intentional acts.     The district court had held pretrial that
vicarious liability was an applicable basis for liability in this case, then over
objection it refused to give an explicit instruction on that theory to the jury.


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                                   No. 16-11802
      I. Deliberate Indifference
      To recover under either Section 504 of the RA or Title II of the ADA on a
claim of disability-based intentional discrimination by a public entity, a
plaintiff must prove: (1) he is a qualified individual with a disability; (2) he is
being denied the benefits of a public entity’s services, programs, or activities,
or otherwise suffers intentional discrimination by the entity; and (3) the
discrimination or denial of benefits was because of his disability.         Doe v.
Columbia-Brazoria Indep. Sch. Dist. by & through Bd. of Trs., 855 F.3d 681,
690 (5th Cir. 2017). Judicial precedents concerning either Section 504 of the
RA or Title II of the ADA generally apply to the other. Id. The parties agree
that T.R. is a qualified individual with a disability.      They disagree as to
whether the factual record supports liability for deliberate indifference.
      The following instructions to the jury explained deliberate indifference:
             Defendant Keller ISD is not responsible or liable for the
      alleged mistreatment of Little T by Dan Evans or other employees
      of Keller ISD on account of Little T’s disability unless Plaintiffs
      prove by a preponderance of the evidence that:
             First: Little T was intentionally discriminated against
      because of his disability by Dan Evans or other employees of Keller
      ISD by subjecting him to mistreatment in Keller ISD’s programs,
      services, or activities;
             Second: This alleged mistreatment was so severe, pervasive,
      and objectively offensive that it effectively deprived Little T of the
      educational programs, services, or activities provided by Keller
      ISD;
             Third: Defendant Keller ISD had actual knowledge of the
      alleged mistreatment by Dan Evans or other employees of Keller
      ISD because of Little T’s disability; . . .
             Fourth: Defendant Keller ISD acted with deliberate
      indifference to such known mistreatment by Dan Evans or other
      Keller ISD employees.
The third and fourth instruction required Keller to have actual knowledge and
to be deliberately indifferent. There is no dispute here about the instructions.


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                                   No. 16-11802
      As we have already discussed, our de novo standard of review requires
that all evidence and any reasonable inferences be viewed in the light most
favorable to the party whose jury verdict was overturned. Review of a jury
verdict by an appellate court is to be “especially deferential.” EEOC v. Boh
Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013) (en banc) (citation omitted).
“Judgment as a matter of law is appropriate where there is no legally sufficient
evidence upon which the jury could find for a party on its claim.” Carmona v.
Sw. Airlines Co., 604 F.3d 848, 855 (5th Cir. 2010). The evidence is sufficient
if reasonable, fair-minded, and impartial jurors could reach different
conclusions. Delano-Pyle, 302 F.3d at 572.
      We now examine the evidence.             This is a large record with many
witnesses. To guide our discussion, we rely on what the plaintiff has argued
in its appellate briefing to show how it believes the district court erred. The
plaintiff identifies several incidents that it argues show the district court
misapplied the deliberate-indifference standard to Keller’s treatment of T.R.
      First, the plaintiff argues that Keller had actual knowledge as of April
17, 2008, that Evans abusively mistreated T.R.             On that day, a meeting
occurred between Principal Taylor and Rebecca Bruton, who was Evans’s
classroom aide at the time. There, Bruton expressed concerns with how Evans
treated T.R. In its appellate brief, the plaintiff argues that “[a]cknowledging
that the administration had actual knowledge of Evans’s abuse then . . . , the
district court wrongly sidestepped the devastating substance of what the
administration    learned   from    Ms.       Bruton’s   notes.”    This   argument
mischaracterizes the district court’s opinion by omitting a critical qualifier.
The district court wrote: “It is undisputed that Keller acquired actual
knowledge of Evans’s alleged mistreatment of T.R. at this meeting.” (emphasis
added). The trial transcript does not support the plaintiff’s framing of this


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                                  No. 16-11802
issue. In her testimony at trial, Bruton herself admitted she did not think
Evans “ever acted to intentionally harm any child.”
      Moreover, the plaintiff argues that in this meeting Bruton expressed the
“devastating substance” of how Evans was abusive towards T.R.            Though
viewing the evidence with great deference to the jury’s verdict, a reasonable
factfinder could not agree with the plaintiff’s characterization. At trial, Bruton
explained the meeting. On direct examination, she testified Evans “yanked”
T.R.’s gait belt and “kicked” T.R.’s foot, which caused her to express her
concerns about Evans with Keller. Under cross examination, though, Bruton
admitted she did not observe any reaction of pain following the “yank” and that
by “kicking” she meant that Evans used his foot to move T.R.
      Bruton’s concerns were not sufficient to provide Keller with actual
knowledge that one of its employees was abusing a student. Bruton’s concerns
also are insufficient to support the jury’s finding of “mistreatment so severe,
pervasive, and objectively offensive that it effectively deprived Little T of
education programs, services, or activities provided by Keller.”
      The second grouping of evidence the plaintiff wants us to consider
concerns Keller’s response to hearing Bruton’s descriptions of Evans’s
treatment of T.R. The plaintiff characterizes the evidence heard by the jury as
“credible evidence that Keller ISD did absolutely nothing more after writing a
file memo and giving Evans a ‘slap on the wrist.’” The evidence admitted at
trial, however, showed that Keller’s response was more than that. Based on
the April 17 meeting, Principal Taylor understood Bruton to be expressing
concerns about roughness, not abuse. If indeed Bruton thought Evans’s actions
were abusive, then she was required to report the abuse to Child Protective
Services (“CPS”), not just the administration. Bruton testified that she did not
report any of Evans’s conduct to CPS, and in her meeting with Taylor she did
not refer to any of Evans’s conduct as abuse.
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                                 No. 16-11802
      Taylor testified that she understood the report to be that Evans was
rough with students, which in her nearly four decades of teaching experience
occurred most often during physical therapy sessions. In responding to a
report that Evans was “rough” with students, Taylor questioned T.R.’s
therapist and discussed if Keller was “on target with where [it] need[ed] to be
with his physical therapy.” She also instructed Evans to be careful in handling
students. After investigating and concluding that there was no evidence of
abuse, Taylor made a note in Evans’s file and monitored his classroom more
closely. At trial, the plaintiff did not impeach Taylor’s testimony in any way
— there was nothing to suggest her recollection was deficient or that her
testimony was untrue.       No reasonable factfinder could conclude that
questioning T.R.’s therapist, questioning Evans and instructing him not to be
so rough, documenting what occurred, and then continuing to monitor after
receiving a report of roughness was deliberate indifference.
      Third, the plaintiff has us examine the evidence of what occurred at year
end, when “the outgoing administration chose to remain silent about the abuse
in Evans’s classroom.” The plaintiff, though, fails to include a single citation
to evidence in the record that would have enabled the jury to reach this
conclusion. We have already found that there was no evidence to support that
Keller had actual knowledge about abuse occurring in Evans’s classroom.
Bruton did not consider it abuse. Taylor did not consider it abuse. The jury
also heard, without any objection from plaintiff, that CPS investigated what
happened in Evans’s classroom and Evans was pleased that the letter from
CPS cleared him of any wrongdoing. If abuse did not occur, then a reasonable
factfinder could not conclude that remaining silent constituted intentional
discrimination. The evidence fails to show abuse occurred.
      Fourth, the plaintiff argues that there was sufficient evidence that Keller
knew that Evans “routinely dropped” T.R. by failing to follow the protocols for
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                                  No. 16-11802
lifting the child, causing injury. By itself, Evans’s failure to follow an internal
policy requiring two-person lifts is not evidence of intentional discrimination.
Analogously, violating a school’s administrative requirements is not enough to
allow damages under Title IX. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 292 (1998).      In addition, we agree with the district court’s
conclusion that Keller did not have actual knowledge or notice that Evans was
mistreating T.R. The evidence presented to the jury does not support a finding
that Keller was on notice that Evans was abusive towards T.R.
      Beyond what is argued in the plaintiff’s brief, there is evidence about the
onset of dystonia, multiple knee injuries, a head bump, and a broken thumb.
It is unclear from the record if T.R. was at Keller when he received his first
knee injury in May 2009.       T.R.’s doctors both testified that T.R. had not
regressed during his time at Keller. In addition, the doctors testified that the
onset of dystonia was not triggered by physical or sexual abuse: “Dystonia is
characteristic of brain dysfunction in the parts of the brain that control
movement. . . . Dystonia is involuntary.”        Bruton admitted at trial that,
although she thought it was disrespectful, Evans’s actions did not physically
harm T.R.
      Furthermore, the record does not support that Keller caused the bump
or knot on T.R.’s head. The medical records admitted at trial stated that T.R.’s
injury was likely caused by an insect bite; any other explanation was purely
speculative. Similarly, the record does not indicate that Evans or Keller was
responsible for T.R.’s broken thumb. In her investigation, Keller’s principal
was unable to determine what caused the injury even after she “spoke to both
the paraprofessionals, to the teacher, OT/PT, occupational therapist, physical
therapist, the nurse, [and] anybody that had been in the classroom.” Finally,
the record does not indicate that T.R.’s second knee injury was because of
Evans’s or Keller’s action. None of the medical personnel who evaluated T.R.
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                                       No. 16-11802
observed a knee injury. Instead, the record supports that T.R. was constipated,
received treatment, and recovered before his knee injury was discovered.
       The evidence does not support a factual link between T.R.’s injuries and
any action or inaction by Keller that qualifies as intentional discrimination.
For many of the injuries, the record does not show that Keller or any of its
employees were responsible at all. Applying the same evidentiary standard as
did the district court, we find no error in the grant of a JMOL insofar as
evidence of deliberate indifference is concerned.


       II. Vicarious Liability 2
       Our description of the evidence on deliberate indifference also reveals
there is principally only speculation that Evans himself acted wrongfully.
Nonetheless, instead of evaluating what fact findings jurors could make, we
resolve arguments about vicarious liability on the basis of procedural default.
       In denying summary judgment before trial, the district court concluded
that under the ADA and the RA, Keller could be vicariously liable for the
intentionally discriminatory acts of its employees. The court relied on our
decision in Delano-Pyle, where we held that “under either the ADA or the RA,
the public entity is liable for the vicarious acts of any of its employees as
specifically provided by the ADA.” 302 F.3d at 574–75 (emphasis omitted). We
had also held that “[t]here is no ‘deliberate indifference’ standard applicable to
public entities for purposes of the ADA or the RA. . . . [T]o receive compensatory
damages for violations of the Acts, a plaintiff must show intentional
discrimination.” Id. at 575. Applying both of those propositions, Delano-Pyle
concluded the county was vicariously liable when a police officer arrested a



       2 The plaintiff at times refers to “respondeat superior” liability, but we will use the
term of the caselaw we discuss, which is “vicarious liability.”
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                                      No. 16-11802
hearing-disabled man but did not provide any accommodation despite notice
that the arrestee likely was not understanding oral communication. Id. at 576.
Neither a policymaker nor an official policy was required; liability could arise
from an employee’s intentional acts. See id.
       Keller has argued that the 2002 Delano-Pyle opinion reached the wrong
conclusion by failing to apply prior and contrary decisions by the United States
Supreme Court. 3 The persuasiveness of arguments that one of our precedents
is wrong is usually irrelevant due to this circuit tenet: “It is a well-settled Fifth
Circuit rule of orderliness that one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law, such as by a
statutory amendment, or the Supreme Court, or our en banc court.” Jacobs v.
Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Keller, though,
refers us to a decision that after declaring a clear conflict between one of our
precedents and a Supreme Court opinion predating the precedent, applied the
Supreme Court’s analysis. Wilson v. Taylor, 658 F.2d 1021, 1034–35 (5th Cir.
Unit B 1981). 4 The Wilson court said the prior panel opinion “did not mention



       3 See Barnes v. Gorman, 536 U.S. 181, 185 (2002) (applying Title IX analysis to Title
II and Section 504 claims and requiring proof of intentional discrimination for damages);
Davis by Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646–47 (1999)
(holding that a school district could be liable under Title IX for peer-on-peer harassment if
the school had actual notice and responded with deliberate indifference); Gebser, 524 U.S. at
277 (requiring proof of actual notice and deliberate indifference before a school district is
liable under Title IX for a teacher’s sexual harassment of a student).

       4  Among the plaintiff’s criticisms of Wilson is that it was issued by a Unit B Fifth
Circuit panel. We thus describe such panels. Beginning in May 1980, in anticipation of the
split of the six-state Fifth Circuit that finally occurred on October 1, 1981, all judges and
cases from the eastern three states (the future 11th Circuit) were assigned to Unit B panels,
while all the western states’ judges and cases were assigned to Unit A panels. Robert A.
Ainsworth Jr., Fifth Circuit Court of Appeals Reorganization Act of 1980, 1981 BYU L. REV.
523, 524 n.6 (1981). Wilson, a Florida case, was submitted to a Unit B panel. A decade later,
this court finally addressed the effect of such opinions: “We now squarely hold that all Unit
B cases are precedent in the Fifth Circuit.” United States v. Rojas-Martinez, 968 F.2d 415,
420 n.11 (5th Cir. 1992). Wilson’s precedential value thus is unspoiled by its Unit B origin.
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                                  No. 16-11802
[the earlier Supreme Court opinion], and we have examined the briefs and
ascertained that [the Court’s opinion] was not called to the attention of the []
panel.” Id. at 1035. This orderliness caveat has not developed much of a
following in the Fifth Circuit, largely one hopes because its premise of a panel
and parties who all fail to identify controlling Supreme Court authority is rare.
Regardless, we will explain why there is no need for us to follow it here.
      Relying on Delano-Pyle, PlainsCapital offered a jury instruction that
would inform jurors of vicarious liability:
            Under the Rehabilitation Act and ADA, a public entity, such
      as Keller ISD, is liable for the vicarious acts of any of its employees.
      This means that Keller ISD is liable for any of its employees’
      wrongful acts so long as the wrongful act or acts were committed
      in the course of the employees’ employment.
Keller objected and offered alternatives. When the district court finalized the
instructions, no instruction referring explicitly to vicarious liability was given.
Plaintiff’s counsel at a hearing made two objections. First, counsel argued that
Keller could be held vicariously liable under the ADA and RA “and all we need
to do is show that an employee of Keller ISD discriminated against Little T
and, thereby, either excluded him from participating in or denied him the
benefits of a service, activity, or program or, otherwise, discriminated against
Little T because of his disability.” Second, counsel objected to the requirement
that the plaintiff needed to show “knowledge of Keller ISD or deliberate
indifference as those standards only apply to student on student harassment.”
Both objections were overruled.
      On appeal, though, the plaintiff does not argue that the district court
should have granted an additional or different instruction on vicarious
liability. Indeed, the plaintiff indicates the jury instructions did present the
necessary standard to jurors, “the jury made the requisite findings for such
[vicarious] liability, and judgment should alternatively have been entered on

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                                  No. 16-11802
that basis.” The referenced “findings” must be those on the verdict form, where
jurors answered “yes” to each of the following questions:
             1. Was Little T intentionally discriminated against because
      of his disability by Dan Evans or other employees of Keller ISD by
      subjecting him to mistreatment in Keller ISD’s programs, services,
      or activities?
             2. Was the mistreatment so severe, pervasive, and
      objectively offensive that it effectively deprived Little T of
      educational programs, services, or activities provided by Keller
      ISD?
             3. Did Keller ISD have actual knowledge of the
      mistreatment by Dan Evans or other employees of Keller ISD
      because of Little T's disability?
             4. Did Keller ISD act with deliberate indifference to such
      known mistreatment by Dan Evans or other employees of Keller
      ISD?
             5. Did Keller ISD intentionally discriminate against Little
      T because of Little T’s disability by its actions or failure to act in
      response to its knowledge that Dan Evans or other employees of
      Keller ISD were intentionally mistreating Little T because of his
      disability?
      In summary, the plaintiff’s argument is that affirmative answers to
several of these questions that were intended to explain the elements of the
deliberate indifference standard of liability constitute findings on the separate
legal standard of vicarious liability. To emphasize the law as it was argued to
the district court, we repeat part of our earlier quote of plaintiff’s offered but
rejected instruction on vicarious liability: “Keller ISD is liable for any of its
employees’ wrongful acts so long as the wrongful act or acts were committed in
the course of the employees’ employment.” The only relevant employee was
Evans, and the intentional acts under plaintiff’s theory would have to amount
to Evans, because of T.R.’s disability, denying the child any benefits of the
services, programs, or activities of the school. Delano-Pyle, 302 F. 3d at 574.
      We start our analysis of this issue with identifying our standard of
review. To set the stage for the identification, we remind that the jury verdict
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                                   No. 16-11802
was in favor of the plaintiff, reflected in jurors’ answers to interrogatories on
deliberate indifference. After an initial appeal and remand, a JMOL was
granted because the district court found a lack of evidence of the school
district’s knowledge of its employee’s possibly abusive conduct. The response
to the motion for a JMOL was the time for the plaintiff to argue that, regardless
of the evidence of Keller’s knowledge, there was sufficient evidence to support
vicarious liability and, further, that affirmative answers were given to correct
jury interrogatories on that theory. The arguments were not made. Yes, the
plaintiff argued there was sufficient evidence of Evans’s intentional acts, but
the district court was never informed of this argument that the jury had
already decided the issue of vicarious liability.            That argument was
particularly necessary because of the inconsistent argument made during trial
that it was error not to give an instruction on vicarious liability.
      We characterize this new issue as a legal argument not presented to the
district court in response to the dispositive motion for a JMOL. We have held
that plain-error review applies when the movant for a JMOL did not include a
separate legal issue in its motion and wanted to raise it for the first time on
appeal. See Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 292 (5th Cir.
2007). The same rule should apply when the party trying to preserve a verdict
raises a new legal basis on appeal to set aside the grant of the JMOL.
      For plain error, the party seeking reversal must show there was: “(1)
‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Holmes v.
Tex. A & M Univ., 145 F.3d 681, 685 (5th Cir. 1998) (quoting Johnson v. United
States, 520 U.S. 461, 467 (1997)). If those factors are satisfied, then we may
exercise our discretion to correct an error that undermines the fairness,
integrity, or public reputation of judicial proceedings. Id. The newly asserted
error is that sufficient instructions and interrogatories to support vicarious


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                                   No. 16-11802
liability were submitted to the jury, and therefore it was error to grant a JMOL
by considering only the evidence regarding deliberate indifference.
      The legal issues that must be decided are at least these: (a) what must
be included in jury instructions for vicarious liability in this context, (b) did the
instructions and interrogatories given on deliberate indifference, containing
additional elements not relevant to vicarious liability, present the vicarious
liability theory to jurors, and (c) if so, may a jury verdict be upheld on a theory
not presented to jurors if the elements of that theory are a subset of those in a
set of interrogatories given to the jury? The factual issue is simply whether
there is some evidence in the record to support vicarious liability.
      On the key legal issues, plaintiff has provided little briefing. In its
opening brief, it repeated the factual argument made in district court when
opposing the JMOL, namely, that Evans’s discriminatory intent was clearly
established. It did not, though, offer any legal support for the proposition that
the district court could use that evidence to conclude the jury already had made
findings on vicarious liability. The plaintiff here also reargues Delano-Pyle
and says the jury interrogatory on Evans’s intent is comparable to what was
proven about the police officer in that precedent. Yet, there is no citation to
any caselaw that would allow the district court or this court to use that
interrogatory to impose liability under a new theory.
      Whatever may be the merits of the argument that some of the findings
on deliberate indifference should be transformed into findings on vicarious
liability, plaintiff has given us little argument and no authority to support it.
Failure to provide meaningful briefing on an issue constitutes a waiver. See
Malin Int’l Ship Repair & Drydock, Inc. v. Oceanografia, S.A. de C.V., 817 F.3d
241, 244 n.2 (5th Cir. 2016). This issue was waived.
      We need not reach the issue of whether Delano-Pyle is vulnerable to
arguments about overlooked Supreme Court authority. AFFIRMED.
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