     Case: 10-10166 Document: 00511390817 Page: 1 Date Filed: 02/23/2011




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

                                                 FILED
                                                                          February 23, 2011

                                       No. 10-10166                         Lyle W. Cayce
                                                                                 Clerk

JOHN MCIVER,

                                           Plaintiff - Appellant/Cross-Appellee
v.

AMERICAN EAGLE AIRLINES, INC.,

                                           Defendant - Appellee/Cross-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:08-CV-740


Before GARZA, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       John McIver (“McIver”) appeals the district court’s entry of a final
judgment in favor of his former employer, American Eagle Airlines, Inc.
(“American Eagle”) on his age discrimination claims. McIver argues that the
district court erred by: (1) declaring a mistrial and setting aside the first jury
verdict in favor of McIver; (2) misallocating the burden of proof on a statute of
limitations issue; (3) entering summary judgment sua sponte in favor of
American Eagle on McIver’s leave of absence claim without providing sufficient

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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notice to McIver; and (4) not permitting McIver to introduce certain evidence at
trial. American Eagle filed a cross-appeal, contending that the district court
erred in refusing to grant judgment as a matter of law on American Eagle’s
limitations defense and instead submitting a jury charge on McIver’s unpleaded
theory of equitable estoppel. For the reasons set forth below, we AFFIRM the
judgment in favor of American Eagle. Because we affirm the judgment, we do
not reach American Eagle’s cross-appealed issue.
     I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      McIver began working for American Eagle in 1988 as a pilot. He joined
the training department in 1998, where he trained pilots on the Saab aircraft.
In 2003, James MacAlla (“MacAlla”) hired McIver into the jet training program.
At the time McIver transferred to this department, he was 58 years of age. In
2005, when McIver was 60, he was notified that he was being “displaced” (i.e.,
terminated). MacAlla hand-delivered a letter to McIver on November 17, 2005
notifying him of the decision. McIver later claimed that on this date, MacAlla
told him that the displacement was a “mistake” and that he would “check into
it.” American Eagle disputes that MacAlla ever made this statement.
      McIver filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on September 26, 2006, claiming that he was
unlawfully terminated on December 1, 2005 due to his age. On September 3,
2008, McIver filed a new charge of discrimination, adding the allegation that he
had been improperly denied a leave of absence. McIver filed suit in federal
district court on December 3, 2008, alleging that American Eagle violated the
Age Discrimination in Employment Act of 1967 (“ADEA”) by displacing him and
denying him an opportunity to take a leave of absence because of his age.
      The judge bifurcated the first trial into two phases.    The first phase
determined whether McIver’s claims were barred by the statute of limitations.
The second phase would decide whether American Eagle did, in fact,

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discriminate against McIver on the basis of age. As to the first phase, the
district court concluded that American Eagle was entitled to a statute of
limitations defense because McIver admitted to receiving notice of termination
on November 17, 2005, meaning that the statute of limitations had expired
before he filed his charge with the EEOC. Therefore, McIver bore the burden to
establish a ground for avoiding that defense.       McIver argued that because
MacAlla told him that his termination was a “mistake,” he did not know that he
was being displaced until December 1, 2005 (the date he was actually
terminated), so the statute of limitations should be tolled because the defendant
affirmatively misled McIver. MacAlla claimed that he never told McIver that his
termination was a “mistake.”      The trial court determined that this factual
dispute was a jury issue with McIver bearing the burden of proof.
      The case proceeded to trial for the first time on November 9, 2009. The
jury found in McIver’s favor on the limitations issue during the first phase of the
trial. During the second phase, however, a juror informed the court that he saw
MacAlla, American Eagle’s witness, being coached by a member of the audience,
who was later identified as American Eagle’s general counsel. The judge was
satisfied that this was not the case, but he was nonetheless worried that the jury
was prejudiced against American Eagle. American Eagle moved for a mistrial,
which the court granted.     The court also expressed concern with McIver’s
behavior on the witness stand during the first phase of the trial and expressed
significant concern that the jury was prejudiced against American Eagle during
that phase as well. The judge noted that McIver was doing “everything he could
to flirt with the jury, including nodding at the jury, staring at the jury when he
had an opportunity, and in effect communicating with the jury.” Additionally,
the judge commented that McIver’s behavior was “totally unacceptable and was
such an aggravated situation, I was tempted to order a mistrial and start over
again . . . .” Therefore, the judge granted a mistrial as to both phases.

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       The second trial began on January 19, 2010. This trial was not bifurcated,
and this time the jury returned a verdict in favor of American Eagle on the
limitations issue, finding that MacAlla did not tell McIver that he was
terminated “by mistake.”          The district court entered a final judgment for
American Eagle on January 20, 2010. McIver timely appealed, and American
Eagle timely filed its cross-appeal.1
                                     II. ANALYSIS
A.     Did the district court err by declaring a mistrial and setting aside
       the first jury verdict in favor of McIver?
       “The decision to grant or deny a motion for a new trial is generally within
the sound discretion of the trial court, and reversible only for an abuse of that
discretion.” Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982).
This is because the trial judge had the opportunity to “observe the witnesses and
to consider the evidence in the context of a living trial rather than upon a cold
record . . . .” Id. However, we apply a “broader review to orders granting new
trials than to orders denying them.” Id. “Although the standard of review
remains abuse of discretion, when the district court grants a new trial our
inquiry generally is broader because of our respect for the jury as an institution
and our concern that the party who persuaded the jury should not be stripped
unfairly of a favorable decision.” Nissho-Iwai Co. v. Occidental Crude Sales, Inc.,
848 F.2d 613, 619 (5th Cir. 1988).
       A court may grant a motion for a new trial because of actual or implied
juror bias. See United States v. Scott, 854 F.2d 697, 699-700 (5th Cir. 1988). In
Scott, a juror failed to disclose during voir dire that his brother was a law



       1
         The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (federal question
jurisdiction), as the claims asserted in the complaint were based upon alleged violations of a
federal statute, the ADEA, 29 U.S.C. § 621 et seq., as amended. Final judgment was entered
in this matter on January 20, 2010, which disposed of all claims remaining in the litigation.
This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

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enforcement official. Id. at 698. After the relationship came to light, the district
court concluded that although the juror’s failure to answer the question honestly
was “unreasonable,” a new trial was not warranted because the juror sincerely
believed that he could be impartial. Id. We reversed, concluding that the failure
to disclose the relationship raised a “genuine prospect of actual bias,” and the
district court erred in denying the motion for a new trial. Id. at 700.
       In cases where we have found an abuse of discretion, we concluded that
the district judge substituted his or her judgment for that of the jury without a
basis for doing so. See, e.g., Peterson v. Wilson, 141 F.3d 573, 577 (5th Cir.
1998)(judge questioned jurors after the verdict and used that discussion to grant
a new trial); Brun-Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 244 (5th
Cir. 1988)(judge’s conclusion that the verdict was unreasonably low was not
supported by the evidence). In this case, the trial judge instructed the attorneys
during the pretrial conference that he would not “permit any playing to the jury
or currying favor with the jury.”2 Nonetheless, the record indicates that McIver
spoke directly to the jury during the first phase of the first trial. During the
second phase, a juror came forward to tell the court that he believed American
Eagle’s witness was being coached by a member of the audience because the
witness “never looked at the jury.” The judge stated that he believed that this
juror and possibly the other jurors were prejudiced against American Eagle
because American Eagle’s witness followed the trial judge’s instruction not to
answer questions directly to the jury.




       2
          McIver argues that the judge did not specifically instruct the witnesses not to curry
favor with the jury. While acknowledging that he did not mention witnesses specifically in his
pre-trial instructions to the attorneys, the judge stated: “I instructed you and the other lawyer
that there would not be any plays to the jury during this trial and that would certainly include
your client trying to charm the jury by smiling at them and mouthing . . . at the jurors as they
walked back to the jury box.”

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      Prior to announcing his decision to set aside the jury’s verdict, the trial
judge made several observations on the record about McIver’s conduct during the
first phase of the trial that raised concerns about prejudice against American
Eagle.   For example, the judge observed that “MacAlla’s credibility was,
unfortunately, tainted by the fact that he complied with this court’s instructions
and McIver did not.” In contrast, McIver “was communicating with the jury by
nods of his head and facial expressions as they were coming back to the jury
box.” According to the court, “Mr. McIver was on the stand doing what he could
to infatuate the jury with him, by talking to the jury instead of answering
questions to the lawyers.” The judge noted that “part of the problem is they [the
jurors] saw how Mr. McIver treated them and they are now drawing—they have
established him as the norm, somebody that charms them. And if another
witness doesn’t charm them, there’s something wrong with that other witness,
at least some of the members of the jury—at least one of the members of the jury
has reached that conclusion.”
      We recognize that this is an extremely close case and that we must
consider two important interests: McIver’s interest in upholding the jury’s
verdict and American Eagle’s interest in having an unbiased jury. Considering
all the facts, we cannot say that the trial judge abused his discretion in sua
sponte entering a motion for a new trial. The trial judge’s decision was based on
some evidence that the jury was biased against American Eagle because
American Eagle’s witness followed the court’s instructions not to look at the jury
while testifying while McIver did not. We conclude that it was not unreasonable
for the district judge to conclude that the jury bias began during the first phase
of the trial and was enough to invalidate the jury’s verdict. Because we must
resolve doubts about the decision to grant a new trial in favor of the district
judge, see United States v. Baytank, Inc., 934 F.2d 599, 618 (5th Cir. 1991), we



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conclude that the district judge did not abuse his discretion in granting a new
trial.
         Additionally, this case does not present facts similar to either Peterson or
Brun-Jacobo, where we found an abuse of discretion. Peterson, 141 F.3d at 577;
Brun-Jacobo, 847 F.2d at 244. In those cases, the trial court substituted its
opinion for that of the jury without any factual basis for doing so. Here, in
contrast, the trial judge recited evidence from which we can infer that juror bias
did, in fact, exist.
B.       Did the district court err by submitting an instruction and verdict
         form to the jury that allocated the burden of proof on the
         equitable tolling issue to McIver?
         McIver also argues that the district court incorrectly placed the burden of
proof on him to show that the statute of limitations was tolled. Generally, the
party raising an affirmative defense has the burden of proof on that issue. See
Crescent Towing & Salvage Co. v. M/V ANAX, 40 F.3d 741, 744 (5th Cir. 1994).
To be timely, McIver had to file his EEOC charge within 300 days of the alleged
discriminatory act. See 29 U.S.C. § 626(d). If American Eagle established that
the charge was not filed on time, then McIver had the burden to show that the
limitations period was subject to equitable tolling or equitable estoppel. See
Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992); Rhodes v.
Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991).
         The 300-day time period begins to run “when the employee receives notice
of the allegedly discriminatory decision, not when the employment actually
ceases.” Conaway, 955 F.2d at 362. In an ADEA action, this means that “[w]hen
a plaintiff alleges an unlawful discharge, the statute of limitations begins to run
when the plaintiff is notified that his employment is terminated.” Chapman v.
Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989) (per curiam) (emphasis added).




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      In his complaint, McIver unequivocally admitted to receiving notice of
termination in November of 2005. The district court and American Eagle both
correctly note that facts admitted in a pleading are binding judicial admissions.
See Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 550
(5th Cir. 2009), cert. denied, 130 S. Ct. 1285 (2010).     Additionally, McIver
conceded in the Joint Pretrial Order that he was notified of his displacement via
a hand-delivered letter on November 17, 2005. McIver filed his EEOC charge
on September 26, 2006, 313 days after he received notice that he was being
displaced.
      We conclude that because McIver admitted to receiving notice of his
displacement on November 17, 2005, American Eagle conclusively established
that the statute of limitations had run, and the trial judge properly concluded
that McIver bore the burden to show that equitable tolling or equitable estoppel
applied. McIver does not dispute that he received the termination letter on
November 17, 2005, and according to clearly established Fifth Circuit precedent,
this notice triggers the limitations period. Chapman, 886 F.2d at 758. Whether
or not McIver’s version of the November 17, 2005 conversation occurred goes to
whether the limitations period was tolled, not to whether it was triggered. See
id.; Conaway, 955 F.2d at 362. The district court properly placed the burden of
proof in submitting the tolling question to the jury, allowing the jury to
determine whether MacAlla told McIver that there had been a “mistake” about
McIver’s displacement.
      McIver also argues that American Eagle’s version of the facts conclusively
establish tolling. MacAlla admitted during the first trial that he told McIver
that it “wasn’t the case” that McIver was “being displaced because he was about
to be 60 and he couldn’t do line checks after he was 60 and [American Eagle was]
getting rid of people over age 60.” McIver argues that MacAlla’s comment
actively misled him about American Eagle’s age discrimination and prevented

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him from asserting his rights. Because McIver did not raise this issue before the
district court, he waived this argument. Horton v. Bank One, N.A., 387 F.3d 426,
435 (5th Cir. 2004) (“Arguments not raised in the district court cannot be
asserted for the first time on appeal.”).
C.    Did the district court err by sua sponte entering summary
      judgment on McIver’s leave of absence claim without providing
      sufficient notice to McIver or by excluding the testimony of
      certain witnesses?
      The jury found against McIver on the limitations issue in the second trial;
therefore, any alleged errors during the liability phase are harmless.
Consequently, we need not address McIver’s arguments that the district court
erred in excluding evidence relevant to the liability phase of the trial. We also
need not address McIver’s assertion that the district court erred in sua sponte
entering summary judgment on his leave of absence claim for the same reason.
      With respect to McIver’s evidentiary objections to testimony excluded
during the limitations phase of the trial, we conclude that McIver waived any
objections by presenting no legal arguments as to why the district court erred.
See Douglas W. ex rel. Jason D.W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210-
11 n.4 (5th Cir. 1998) (declining to address a party’s contention that the trial
court erred in striking several exhibits because the party provided no
explanation of why the district court erred); Cavallini v. State Farm Mut. Auto
Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995) (“[T]he failure to provide any legal
or factual analysis of an issue results in waiver of that issue.”). We therefore
reject McIver’s remaining objections.
                              III. CONCLUSION
      For the reasons set forth above, we AFFIRM the judgment in favor of
American Eagle.




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