     Case: 12-60851       Document: 00512316365          Page: 1     Date Filed: 07/22/2013




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

                                                                             FILED
                                                                            July 22, 2013

                                     No. 12-60851                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MYRTLE LYNN PREWITT,

                                                   Plaintiff-Appellant
v.

MISSISSIPPI STATE UNIVERSITY,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:06-CV-338


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Myrtle Lynn Prewitt (“Prewitt”) sued Mississippi State University
(“MSU”) alleging race and gender-based discrimination in violation of the
Equal Pay Act and Title VII of the Civil Rights Act of 1964. A jury returned a
unanimous verdict in favor of MSU, the district court entered judgment in
favor of MSU, and Prewitt appealed. For the reasons that follow, 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                               BACKGROUND
      We previously discussed the background of this case at some length in
Prewitt v. Mississippi State University, 433 F. App’x 270 (5th Cir. 2011).
Accordingly, we provide only a short overview of the facts of the case. Prewitt
is an African-American woman who serves as an Assistant Research Professor
in MSU’s Department of Forest Products. On December 13, 2006, Prewitt filed
a complaint against MSU alleging violations of the Equal Pay Act and Title
VII. In particular, she alleged that MSU was paying her significantly less than
a white male was being paid to perform the same tasks that she performed.
      After a lengthy course of proceedings in the district court, including
appeals to this court, a jury heard Prewitt’s claims from August 13 to August
16, 2012. After Prewitt rested her case, but before MSU presented its case,
Prewitt made her only motion for judgment as a matter of law under Federal
Rule of Civil Procedure 50(a), which the district court denied. At the conclusion
of the trial, the jury returned a unanimous verdict in favor of MSU on all of
Prewitt’s claims.
      On September 7, 2012, Prewitt filed a post-trial “renewed” motion for
judgment as a matter of law or, in the alternative, motion for new trial under
Federal Rule of Civil Procedure 50(b). In this motion, Prewitt alleged, inter
alia, that the jury panel did not represent a fair cross-section of the community
because of an insufficient number of African-Americans on the panel and that
the district court prevented Prewitt from fully litigating her case. The district
court denied this motion on October 1, 2012.
      On October 11, 2012, Prewitt filed a motion for reconsideration in which
she claimed, for the first time, that a three-judge panel was required to hear
her claims under the Voting Rights Act. On October 15, 2012, Prewitt, “out of
[an] abundance of caution,” filed a motion for a three-judge panel to hear her

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claims under the Voting Rights Act pursuant to 28 U.S.C. § 2284 and 42 U.S.C.
§ 1973.    On October 22, 2013, the district court denied the motion for
reconsideration and further denied the motion for a three-judge panel on the
grounds that (1) the motion was untimely because it had been filed almost two
months after the jury had returned its verdict and (2) the motion was
unfounded because Prewitt had never alleged in her amended complaint that
she had been denied the right to vote or challenged the constitutional
apportionment of congressional districts or the apportionment of any statewide
legislative body as required by 28 U.S.C. § 2284 and 42 U.S.C. § 1973. Prewitt
thereafter filed this appeal
                            STANDARD OF REVIEW
      We review de novo a district court’s ruling on a motion for judgment as
a matter of law. Brown v. Bryan Cnty., 219 F.3d 450, 456 (5th Cir. 2000).
Although our review is de novo, our standard of review with respect to a jury
verdict is especially deferential. Flowers v. S. Reg’l Physician Servs., 247 F.3d
229, 235 (5th Cir. 2001).
                                DISCUSSION
      A.    Motion for Judgment as a Matter of Law
      Rule 50 of the Federal Rules of Civil Procedure is structured sequentially.
Under Rule 50(a), the district court may resolve an issue against a party by
granting a motion for judgment as a matter of law against the party if that
party has been fully heard on the issue during a jury trial and the court finds
that a reasonable jury would not have legally sufficient evidentiary basis to find
for the party on that issue. FED. R. CIV. P. 50(a). As to the timing of a Rule
50(a) motion, the text of the rule, as amended in 2006, provides that the
movant may do so “at any time before the case is submitted to the jury.” FED.
R. CIV. P. 50(a)(2). The amended Rule 50(a) removed the requirement that the

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motion be raised at the close of all evidence. Under Rule 50(b), if the district
court did not grant a motion for judgment as a matter of law made under Rule
50(a), a party may file a “renewed” motion for judgment as a matter of law and
may include an alternative or joint request for a new trial. FED. R. CIV. P.
50(b).
         Initially, we note that we recently interpreted Rule 50 to mean that “[i]f
a party fails to move for judgment as a matter of law under [Rule] 50(a) on an
issue at the conclusion of all of the evidence, that party waives both its right to
file a renewed post-verdict Rule 50(b) motion and also its right to challenge the
sufficiency of the evidence on that issue on appeal.” Md. Cas. Co. v. Acceptance
Indem. Ins. Co., 639 F.3d 701, 707-08 (5th Cir. 2011) (quoting Flowers v. S. Reg’l
Physician Servs., 247 F.3d 229, 238 (5th Cir.2001)) (emphasis added). This
interpretation supports MSU’s argument that Prewitt, by neglecting to raise
a Rule 50(a) motion at the close of all the evidence—rather than after only she
rested—waived her right to raise a Rule 50(b) motion. On the other hand, the
2006 amendment to Rule 50, permitting motions for judgment as a matter of
law to be filed “at any time before the case is submitted to the jury,” FED. R.
CIV. P. 50(a)(2), supports Prewitt’s argument that her motion, made after she
rested her case, constituted a valid Rule 50(a) motion that would then permit
her to renew her motion under Rule 50(b).
         We need not resolve this conflict, however, because we conclude that the
district court correctly denied Prewitt’s Rule 50(b) motion on the merits. In her
Rule 50(b) motion, Prewitt raised numerous arguments that had already been
presented to the district court and rejected. Among these arguments, Prewitt
claimed that the jury panel did not represent a fair cross-section of the
community but both failed to make a contemporaneous objection and provided
no evidence that the alleged under-representation of African-Americans was

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“due to the systematic exclusion of the group in the jury selection process.”
Duren v. Missouri, 439 U.S. 357, 364 (1979). Prewitt also claimed that the jury
instructions were “flawed and confusing.” However, she did not object when
the judge provided her with a copy of his proposed instructions and special
verdict form. Next, Prewitt claimed that the district court did not allow her
to “fully and fairly litigate” her case and challenges the jury’s conclusions with
respect to her Equal Pay Act and Title VII claims. Notwithstanding her
conclusory allegations, she enjoyed six years of litigation and a four-day trial
in which a unanimous jury found that her witnesses and testimony could not
support her claimed violations of the Equal Pay Act and Title VII. In light of
the unanimous verdict as well as the abundance of evidence in favor of MSU,
we cannot say that “the facts and inferences point so strongly and
overwhelmingly in [Prewitt’s] favor that reasonable jurors could not reach a
contrary conclusion.” Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002)
(internal quotation marks omitted). Therefore, we conclude that the district
court did not err in denying Prewitt’s motion for judgment as a matter of law.
      B.    Motion for a Three-Judge Panel
      Nor did the district court err in denying Prewitt’s motion for a three-
judge panel under the Voting Rights Act. Prewitt’s amended complaint failed
to include challenges under 28 U.S.C. § 2284 or 42 U.S.C. § 1971, whereby she
could then request a three-judge panel. Section 2284(a) provides that “[a]
district court of three judges shall be convened when otherwise required by Act
of Congress, or when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide
legislative body.” 28 U.S.C. § 2284. Section 1971, in relevant part, provides
that any violation of the rule that “[a]ll citizens of the United States . . . shall



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be entitled and allowed to vote” may form the basis of a request for a three-
judge panel under § 2284. 42 U.S.C. § 1971.
      Prewitt’s amended complaint makes no allegation that she has been
denied the right to vote nor does it assert that the apportionment of
congressional districts or any statewide legislative body is unconstitutional.
Accordingly, Prewitt fails to satisfy the necessary prerequisites for a successful
motion for a three-judge court under 28 U.S.C. § 2284 or 42 U.S.C. § 1971 and,
therefore, the district court correctly denied Prewitt’s motion.
      C.    Miscellaneous Arguments
      Prewitt, in her opening brief, lists nineteen issues on appeal. Included
on this list, for example, are whether Judge Guirola should have recused
himself merely because Prewitt disagreed with his rulings; whether, in this
case, the district court committed “structural error” (on which Prewitt declines
to elaborate); whether the district erred in dismissing a separate suit against
MSU, which asserted the same claims, from which Prewitt failed to appeal, and
which Prewitt failed to include as part of her notice of appeal in this case; and
whether the district court erred by failing to include the record from the
separate, dismissed suit as part of the record on appeal in this case. We have
reviewed Prewitt’s various contentions and conclude that they are supported
only by conclusory allegations, not supported by our case law, or otherwise
without merit.
                                CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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