     Case: 19-50337      Document: 00515289739         Page: 1    Date Filed: 01/29/2020




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

                                                                             FILED
                                    No. 19-50337                      January 29, 2020
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
SARA L. ROBERTS,

              Plaintiff - Appellee

v.

BRINKERHOFF INSPECTION, INCORPORATED, doing business as
SMOB,

              Defendant - Appellant




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:16-CV-342


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Plaintiff Sara Roberts sued her former employer, SMOB, for quid pro quo
sexual harassment, sexual discrimination, and pregnancy discrimination after
SMOB fired her four days into her job. SMOB argued that it fired her because
she was a poor salesperson, because SMOB had received several customer
complaints about her, because she missed two days of work, and because she


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50337
had a poor demeanor and attitude with her coworkers and superiors. After a
two-day trial, a jury found in Roberts’s favor. SMOB moved for a new trial, but
the district court denied the motion. SMOB appealed.
      SMOB raises one argument on appeal. It argues that the district court
erred when it sustained one of Roberts’s objections. This error, SMOB claims,
affected its right to a fair trial. SMOB had asked a witness, SMOB’s president,
to read what his Equal Employment Opportunity Commission statement said
about why he fired Roberts. Her counsel objected, and the court sustained the
objection, reasoning that this part of the statement—relaying that two clients
had complained about Roberts’s behavior—was hearsay. The court reversed its
ruling later that day after realizing that the EEOC statement was Roberts’s
own exhibit and was pre-admitted without objection. The court then allowed
SMOB to present the statement the following day, though the court told SMOB
that presenting the evidence through a witness would be better so as not to
“compound the error by . . . making a bigger deal out of it than you would have
made at the time that you were questioning your witness.”
      SMOB claims that this denied it a fair trial. It argues that the court’s
ruling prejudiced SMOB by preventing it from presenting its defense narrative
in a logical, cogent manner; meanwhile, the court allowed Roberts to present
her narrative uninterrupted. It claims that, though the court allowed SMOB
to present the evidence the next day, the damage was already done. SMOB’s
president had to fly out of the area, so SMOB had to introduce the evidence
through a different witness, which was less effective.
      We review evidentiary rulings for abuse of discretion. Gabriel v. City of
Plano, 202 F.3d 741, 745 (5th Cir. 2000). If the court abused its discretion, we
reverse its judgment only when the ruling affects a party’s substantial rights.
Id. A ruling so affects a party’s rights when, considering all the evidence at
trial, the ruling substantially affected the trial’s outcome. U.S. Bank Nat’l
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                                 No. 19-50337
Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 430 (5th Cir. 2014). But if the
error was harmless, it is excused. Id.
      SMOB is right that the district court erred in preventing SMOB’s
president from reading from his EEOC statement. But the court corrected its
error, rendering the error harmless. See id. SMOB complains that the court’s
erroneous evidentiary ruling disrupted how SMOB presented its case to the
jury. Maybe so, but SMOB does not even attempt to explain how, considering
all the evidence at trial, this disruption affected the outcome. See id. SMOB
does not confront any of the evidence against it, let alone explain how a slight
disruption in how it would have preferred to present this one piece of evidence
substantially affected the outcome. For example, SMOB does not address
Roberts’s claim that SMOB offered inconsistent reasons for firing her (first
financial reasons, then behavioral and performance ones), her allegations that
the personnel manager who hired her asked if she was pregnant during her
interview and made advances on her (flirting with her and telling her she was
good looking and that they were going to date), the odd manner in which he
recruited her (he met and recruited her for a sales job while she was
waitressing at a bar), the suspicious timing of her firing (one day after the
personnel manager found out that she had just gotten married), or her
allegations that her absences from work were approved by her supervisors.
      The court’s ruling affected when the jury heard SMOB’s evidence, not
whether the jury heard it. Considering all the evidence, we find it highly
unlikely that this slight delay in presenting one of SMOB’s alleged reasons for
firing Roberts had any effect on the trial’s outcome. Moreover, though SMOB
complains that it was unable to introduce this evidence through its preferred
witness, the court did not prevent SMOB from recalling its witness. He was
allegedly unavailable the next day, but that was not the court’s fault. Trials
can be unpredictable; witnesses are sometimes needed longer than originally
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                                 No. 19-50337
anticipated. SMOB cites no authority stating that such a situation warrants a
new trial. In any event, considering all the evidence, we find it unlikely that
who read the EEOC statement had any effect on the trial’s outcome.
      Finally, SMOB claims that, because the court instructed the jury to
disregard questions and exhibits to which the court sustained objections, the
jury might have disregarded the EEOC statement. We also find this unlikely.
The jury was read the previously disallowed portion of the EEOC statement
and then heard testimony on that exhibit, which was admitted and available
to the jury during its deliberations. SMOB offers no convincing reason to think
that the jury was confused about what evidence it could consider or that this
potential confusion substantially affected the jury’s decision.
      The court made an error, but quickly corrected it. The result was that
the jury heard one of SMOB’s supposed reasons for firing Roberts one day later,
and through a different witness, than SMOB had planned. SMOB has failed to
show that this substantially affected the trial’s outcome. Thus, we AFFIRM
the district court.




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