                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          June 29, 2004
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                        ______________________                   Clerk

                             No. 03-30948
                           Summary Calendar
                        ______________________


LESLIE V. ROGERS,

                  Plaintiff - Appellant,

     v.

MICHAEL K. CLAY; CLAYS RV LLC, doing business as Clays RV
Center; CLAYS RV CENTER INC,

                  Defendants - Appellees.

                        ______________________

          Appeal from the United States District Court
             for the Western District of Louisiana,
                         Monroe Division
                       USDC No. 01-CV-1508
                     ______________________


Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant, Leslie V. Rogers, brought this claim of gender

discrimination against her former employer, Clay’s RV Center,

Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq.    Following a jury trial, the district court

entered judgment in favor of Clay’s RV Center, Inc.     On appeal,

     *
      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this opinion should not be published and is not precedent except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.

                                   1
Rogers asserts that the district court erred by refusing to grant

her post-verdict motion for judgment as a matter of law.    Finding

no plain error as to the claims raised by Rogers, we AFFIRM the

judgment of the trial court.

     Factual & Procedural History

     Leslie Rogers was employed as a salesperson by Clay’s RV

Center, Inc. (“Clay’s RV”), a small recreational vehicle

dealership, from October 1997 through May 1998.    Other persons

employed by Clay’s RV while Rogers worked there were: Michael

Clay, 11% owner and manager of Clay’s RV’s West Monroe office;

two to three salespersons, all of whom were male aside from

Rogers; and Karen Coates, an administrative assistant.

     At trial, Rogers claimed the work environment at Clay’s RV

was hostile toward women.   She stated that she was prohibited

from using company vehicles as the men did, and that she was not

issued a company sports jacket, as were the male salespersons.

Rogers testified that the male salespersons were rude to the

females on staff, but related well to one another.    She also

accused Mr. Clay of occasional physical forcefulness, and of

commenting that women were not permitted entry into the storage

room because it was a men’s club.

     Rogers testified that Mark Dent, a salesperson, frequently

remarked that women should not be working at Clay’s RV — that it

was a man’s business where women did not belong.    Rogers related



                                 2
an incident in which Dent allegedly berated Karen Coates and told

her to limit her work to her “little secretarial duties.”      Coates

testified that she reported the incident to Mr. Clay, who said he

would speak to Dent.   Coates was fired shortly thereafter,

purportedly for economic reasons.

     According to Rogers, another male salesperson, Bill Delrio,

regularly acted in a harassing manner toward women.     Rogers

testified that Delrio often made sexual comments.     She also

stated that on April 1, 1999, Delrio came into her office and

accused her of stealing one of his customers.     Delrio allegedly

called Rogers a “backstabber,” a “cheater,” and a “bitch,” and

shouted at her for some time.    Rogers testified that, as a

result, she became afraid to be alone in the building with

Delrio.

     Mr. Clay was out of town at the time of the April 1 incident

with Delrio, but returned to the Louisiana office in mid-April.

Rogers reported Delrio’s behavior to Mr. Clay on his second day

back in the office.    Rogers testified that Mr. Clay cut short her

discussion of Delrio’s alleged outburst, told her to get over it,

and to get back to her work.    Rogers allegedly approached Mr.

Clay a second time about Delrio; Clay allegedly responded that

Rogers had “yet to see a temper.”     Rogers claimed that shortly

after she reported the incident, she stopped receiving phone

messages from her customers, family, or friends.

     Rogers alleged that on May 6, 1999, she was dismissed from

                                  3
Clay’s RV.   Rogers testified that Mr. Clay entered her office,

informed her that he was interviewing candidates for her sales

position, and instructed her to leave.    She stated that when she

attempted to retrieve her personal belongings and sales records

from her desk, Mr. Clay forcibly knocked her away from her desk,

grabbed her wrists, and pushed her out the front door.    She

claimed that Mr. Clay laughed as he locked the door behind her.

Rogers complained to the local sheriff’s department about Mr.

Clay’s behavior, but never followed up on that complaint.      Rogers

filed the instant action on August 13, 2001.

     In response to Rogers’s claims, Clay’s RV denied that Rogers

had been subjected to a hostile work environment.    It also denied

that Rogers was fired.    Rather, Mr. Clay accused Rogers of

abandoning her job, and testified that he had planned to replace

Rogers with a new salesperson due to poor work performance on

Rogers’s part.   Clay’s RV further denied that any perceived

termination was based on gender discrimination.

     After a trial on the merits, the jury found that: (1) Rogers

had been subjected to a hostile work environment because of her

gender; (2) Clay’s RV knew of or should have been aware of the

hostile environment but failed to take prompt remedial measures;

and (3) Rogers had failed to take advantage of reasonable

opportunities to minimize or eliminate the objectionable conduct

or hostile environment.    Judgment was entered in favor of Clay’s

RV on June 9, 2003.

                                  4
      On September 3, 2003, Rogers moved for judgment as a matter

of law under FED. R. CIV. PRO. 50, or in the alternative, for a

new trial under FED. R. CIV. P. 59, arguing that Clay’s RV

presented no evidence to support the jury’s finding that she had

been provided opportunities to minimize discriminatory conduct,

but had failed to take advantage of those opportunities.      The

district court denied her motion.      Rogers timely appealed.

      Standard of Review

      On appeal, Rogers contends that the district court erred in

denying her post-verdict motion for judgment as a matter of law.1

Generally, we review the denial of a motion for judgment as a

matter of law de novo.     Deffenbaugh-Williams v. Wal-Mart Stores,

Inc., 188 F.3d 278, 285 (5th Cir. 1999).      However, Rogers failed

to move for judgment prior to the close of all evidence and

before the case went to the jury, as required by FED. R. CIV. P.

50.   A movant who fails to request judgment as a matter of law

under Rule 50(a) at the close of all of the evidence, before the

matter goes to the jury, “waives its right to file a renewed

post-verdict Rule 50(b) motion, and also waives its right to

challenge the sufficiency of the evidence on appeal.”      See United


      1
      We do not consider the denial of Rogers’s motion for new
trial because she did not raise that issue in her opening brief.
Claims of error not raised in an appellant’s opening brief are
waived for purposes of appeal and cannot be preserved by
belatedly addressing them in a reply brief. Taita Chem. Co.,
Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir.
2001).

                                   5
States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 960 (5th

Cir. 1998) (citing Bay Colony, Ltd. v. Trendmaker, Inc., 121 F.3d

998, 1003 (5th Cir. 1997); Polanco v. City of Austin, Tex., 78

F.3d 968, 974 (5th Cir. 1996); Allied Bank-West, N.A. v. Stein,

996 F.2d 111, 114-15 (5th Cir. 1993)).   Accordingly, we treat

Rogers’s request for judgment as a matter of law as raised for

the first time on appeal, and review only for plain error.    See

Adames v. Perez, 331 F.3d 508, 511 (5th Cir. 2003).   Under the

plain error standard, we must uphold the jury’s verdict if any

evidence was presented to support the verdict.   See id.   If we

determine that no evidence was offered at trial to support the

jury’s findings, we will remand the case for a new trial only if

the judgment resulted in a manifest miscarriage of justice.      Id.;

see also Satcher v. Honda Motor Co., 52 F.3d 1311, 1315 (5th Cir.

1995).

     Whether Rogers made a prima facie case of sex discrimination

is not at issue on appeal.   Hence, we limit our analysis to the

issue raised by Rogers — whether any evidence was submitted to

support the challenged finding of the jury.   Cf. Patterson v.

P.H.P. Healthcare Corp., 90 F.3d 927, 933 (5th Cir. 1996) (after

a case has been fully tried on the merits, the appellate court’s

“inquiry becomes whether the record contains sufficient

evidence”).

     Discussion

                                 6
     Rogers argues that her motion for judgment as a matter of

law should have been granted because the evidence adduced at

trial was insufficient to support the jury’s verdict.    The jury

found the following, by a preponderance of the evidence:

     1.     Rogers was subjected to a hostile work environment
            because of her gender;

     2.     Clay’s RV knew or should have known of the gender
            hostile work environment and failed to take prompt
            remedial action;

     3.     Rogers failed to take advantage of reasonable
            opportunities to minimize or eliminate the
            objectionable conduct or hostile work environment.

Based on these findings, the district court entered judgment in

favor of Clay’s RV.2    Rogers challenges only the jury’s third

factual finding as being unsupported by the evidence.    However,

the record indicates that evidence was presented at trial that

could support the jury’s finding that Rogers did not take

advantage of reasonable opportunities to abate the discriminatory

conduct at Clay’s RV.

     As manager and part owner of Clay’s RV, Mr. Clay was the

appropriate person with whom employees should have discussed

their grievances.    Trial testimony revealed that while Mr. Clay

was out of the office, he stayed in touch with his employees by

phone.    Further, Clay’s RV employee Karen Coates testified that

     2
      Rogers explicitly states in her appellate brief that she
“has never and does not now” challenge the district court’s jury
instructions or verdict form; nor does she claim that the
district court erred in applying the law in the instant case.
Thus, we refrain from addressing those issues on appeal.

                                  7
while working at Clay’s RV, she felt that Mr. Clay would have

been receptive to her had she approached him with problems about

the workplace.

     Notwithstanding Mr. Clay’s apparent availability to hear

employee concerns, Rogers testified that she never reported the

regular remarks made by Delrio and Dent about women to Mr. Clay.

Rogers did not tell Mr. Clay that she felt mistreated or

discriminated against.   In addition, Rogers’s testimony reveals

that she did not inform Mr. Clay about Delrio’s alleged outburst

until approximately two weeks after the incident occurred,

despite her purported fear of being present in the office with

Delrio.3   Although Mr. Clay was in the Ohio office during the

weeks surrounding the incident between Rogers and Delrio, Clay’s

RV presented evidence that Mr. Clay was accessible to his

employees by phone while he was away.   Further, Rogers testified

that she spoke with Mr. Clay over the phone shortly after the

altercation with Delrio, but elected not to mention the incident

until Mr. Clay’s returned to the Louisiana office.

     In sum, the jury possessed at least some evidence that could

sustain a finding that Rogers had opportunities to minimize the

hostile conduct at Clay’s RV, but that she failed to take

advantage of those opportunities.    Rogers briefly argues that the

jury’s finding that Clay’s RV failed to take prompt remedial

     3
      Rogers testified that the incident with Delrio occurred on
April 1, 1999. Mr. Clay returned to the office in mid-April.

                                 8
measures amounted to a determination that there were no

reasonable opportunities made available to Rogers to avoid

further discrimination.   However, this argument is unavailing

based on the foregoing discussion.

     Conclusion

     Having found some trial evidence that could support the

jury’s finding that Rogers failed to take advantage of available

opportunities to avoid or reduce the occurrence of discrimination

at Clay’s RV, we are obligated to uphold the verdict.

Accordingly and on these narrow grounds, we conclude that the

district court did not plainly err in denying Rogers’s motion for

judgment as a matter of law; therefore, we AFFIRM judgment in

favor of Clay’s RV.

AFFIRMED.




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