     Case: 09-60469     Document: 00511177888          Page: 1    Date Filed: 07/19/2010



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

                                                                             FILED
                                                                            July 19, 2010
                                     No. 09-60469                           Lyle W. Cayce
                                   Summary Calendar                              Clerk


TERRY S. PRIDEAUX

                                                   Plaintiff - Appellant
v.

TYSON FOODS, INC

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:08-cv-00042


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Terry Prideaux filed suit against his former employer, Tyson Foods, Inc.
(“Tyson”) alleging retaliation under the Family Medical Leave Act of 1993, 29
U.S.C. § 2601, et seq. (“FMLA”). The district court conducted a jury trial, and the
jury returned a verdict in Tyson’s favor. Prideaux appeals evidentiary rulings by
the district court and its refusal to order judicial estoppel. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                I. FACTUAL AND PROCEDURAL HISTORY
      Prideaux became an employee of Tyson in September 2003, when Tyson
acquired the Carthage, Mississippi facility, where Prideaux had been employed
since May 1999. In October 2004, Tyson transferred Prideaux to its Pine Bluff,
Arkansas facility to serve as that plant’s human resources manager.
      In March 2005, Tyson received complaints against Prideaux from three
female employees alleging sexual harassment at its Pine Bluff facility. In
December 2006, those employees filed suit against Tyson (the “Pine Bluff
litigation”) claiming that they had been sexually harassed by Prideaux. In its
answer, Tyson denied the allegations. The parties reached a settlement in
October 2007.
      In March 2006, Tyson placed Prideaux on a two-week paid suspension. It
conducted an internal investigation into the allegations by the female employees
and determined that Prideaux had violated the terms of its Harassment and
Discrimination Policy. In April 2006, Tyson issued a written reprimand,
suspended Prideaux’s annual bonus, and warned him that any additional
violations would result in further disciplinary action, up to and including
termination of his employment.
      In September 2006, Prideaux was promoted to the role of complex-wide
human resources manager at the Carthage facility. A few weeks after his
transfer back to Carthage, Prideaux advised Tyson that he believed that the
Carthage facility was not implementing its FMLA policy correctly. Tyson
conducted an investigation at the Carthage facility in late 2006, and agreed that
its Carthage facility had not been properly tracking




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some employees’ FMLA policy absences. Tyson then corrected the facility’s
tracking methodology, and gave Prideaux an additional raise.
      Shortly thereafter, Prideaux told his boss, John Dilmore, that Tyson
needed to do the right thing and pay the employees whose FMLA rights had
been violated what was owed to them. Prideaux claims that the following week
Dilmore told him that the answer was no; that it would cost too much money and
that Tyson would rather fight each case. Prideaux voiced his objection to such
an approach.
      In March 2007, Tyson received another internal complaint against
Prideaux. A security guard at the Carthage plant reported that she had observed
Prideaux kissing the hand of another female security guard. Laura Brewster, a
member of Tyson’s corporate human resources department, investigated the
complaint. During the investigation, the security guard who made the initial
complaint informed Brewster, that she “didn’t see nothing.” The security guard
whose hand Prideaux kissed stated that she was not offended by his actions.
Brewster interviewed Prideaux regarding the allegations and Prideaux admitted
to engaging in the alleged behavior. Brewster reported her findings to her
supervisors in Tyson’s management, who then decided to terminate Prideaux’s
employment. After being advised of this decision, Prideaux voluntarily resigned
from Tyson on March 20, 2007.
      Prideaux was then hired by Central Industries, Inc. in its Forest,
Mississippi facility. In December 2008, Tyson acquired Central Industries, Inc.
After this acquisition, Tyson eliminated and consolidated several positions,
including the Safety and Environmental Manager position held by Prideaux.




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Tyson offered Prideaux the opportunity to apply for other jobs at Central
Industries. He did so, but was not hired.
      Prideaux filed suit on January 18, 2008, and later amended his complaint
to state only a claim for retaliation under the FMLA. On May 18-19, 2009, the
district court conducted a trial and the jury returned a verdict in Tyson’s favor.
Prideaux timely appealed.
                               II. DISCUSSION
      Prideaux claims that the district court erred in rendering various
evidentiary rulings and declining to impose judicial estoppel. We review
evidentiary rulings and judicial estoppel determinations for abuse of discretion.
Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005); Seidman
v. Am. Airlines, Inc., 923 F.2d 1134, 1138-39 (5th Cir. 1991). “[W]e will reverse
a judgment on the basis of evidentiary rulings only where the challenged ruling
affects a substantial right of a party.” Jones v. Benefit Trust Life Ins. Co., 800
F.2d 1397, 1400 (5th Cir. 1986); F ED. R. C IV. P. 61.
      A. Judicial Estoppel
      Prideaux argues that in the present case Tyson has contradicted its prior
representations in the Pine Bluff litigation by alleging that it had knowledge
that Prideaux had actually harassed the three female employees. He asserts that
the district court abused its discretion in failing to judicially estop Tyson from
asserting that Prideaux violated company policy by harassing three female
employees at its Pine Bluff facility.
      Judicial estoppel is “a common law doctrine by which a party who has
assumed one position in his pleadings may be estopped from assuming an
inconsistent position.” Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir.


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2008) (quoting Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir.
2003)). The purpose of the doctrine is to “protect [ ] the essential integrity of the
judicial process” by reducing the “risk of inconsistent court determinations.” Id.
(quoting New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)) (internal
quotations omitted). We have recognized at least two requirements to invoke the
doctrine: (1) the party’s position must be clearly inconsistent with its previous
one, and (2) the previous court must have accepted the party’s earlier position.
Id. (citations omitted). A third consideration is “whether the party seeking to
assert an inconsistent position would derive an unfair advantage or impose an
unfair detriment on the opposing party if not estopped.” New Hampshire, 532
U.S. at 751.
      Prideaux fails to establish the second requirement, that the court in the
Pine Bluff litigation accepted the position advanced by Tyson. Prideaux argues
that when the parties in the Pine Bluff litigation arrived at a settlement
agreement and moved to dismiss the case, the order of dismissal entered by the
district court in that case constituted judicial acceptance of Tyson’s position that
Prideaux had committed no wrongdoing. But numerous courts in this circuit and
others have held that settlements in ordinary civil cases do not require the
judicial acceptance of either party’s position, and judicial estoppel is therefore
not warranted in a later proceeding. See Rowan Cos., Inc. v. Acadian Ambulance
Serv., Inc., No. H-05-3400, 2008 WL 1989791, at *5 (S.D. Tex. May 2, 2008)
(“Because [the parties] settled their differences prior to trial, the court did not
and was not required to make a determination. . . . Judicial estoppel is not
warranted here.”); In Re Hunt, 124 B.R. 200, 207 (N.D. Tex. 1991) (“[J]udicial
estoppel does not apply in the case of a settlement. This is because the position


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taken in the initial proceeding cannot be viewed as having been successfully
asserted.”); see also Fleet Nat’l Bank v. Gray, 375 F.3d 51, 60-61 (1st Cir. 2004)
(party did not “succeed” in prior litigation if it was settled before any substantive
proceedings began); Bates v. Long Island R.R. Co., 997 F.2d 1028, 1038 (2d Cir.
1993) (judicial estoppel is inapplicable when a prior position was asserted in case
that resulted in settlement); Lowery v. Stovall, 92 F.3d 219, 225 (4th Cir. 1996)
(“[J]udicial estoppel does not apply to the settlement of an ordinary civil suit.”);
Blanton v. Invo Alloys Int’l, Inc., 108 F.3d 104, 110 (6th Cir. 1997) (judicial
estoppel is inapplicable when prior position was asserted in case that resulted
in settlement).
      In the Pine Bluff litigation, the only events that transpired before the
settlement were the filing of the initial pleadings by the parties. The parties filed
no pre-trial motions and the court did not conduct a hearing or otherwise accept
sworn testimony. As such, Tyson was not successful on any prior position and
there was no “judicial acceptance.” Thus, the district court here did not abuse its
discretion by concluding that the dismissal of the Pine Bluff litigation based on
the settlement agreement reached by the parties did not warrant judicial
estoppel.
      B. Motion to Compel
      In May 2008, the district court entered a scheduling order setting the
discovery deadline for December 8, 2008. On November 25, 2008, Prideaux filed
a notice to take Tyson’s deposition under Rule 30(b)(6) on the last day of
discovery. Tyson proffered John Dilmore to speak on its behalf. During the
deposition, Prideaux ’s counsel questioned Dilmore on matters to which he could
not provide a satisfactory answer. On December 19, 2008, Prideaux filed a


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Motion to Compel requesting that the district court compel Tyson to proffer a
proper representative. The district court denied the motion as untimely.
      Rule 7.2(B)(2) of the Uniform Local Rules of the Northern and Southern
Districts of Mississippi provides that all “discovery motions must be filed
sufficiently in advance of the discovery deadline so as not to affect the deadline.”
U NIF. L OC. R. 7.2(B)(2). Prideaux suggests no good cause for waiting until the
last month of the seven-month discovery period to begin the process of taking
depositions, thus necessitating the filing of the Motion to Compel after the
discovery deadline. The district court did not abuse its discretion in denying the
Motion to Compel.
      C. Motion for Leave to Take Trial Testimony Telephonically
      In May 2009, just two weeks before trial, Prideaux filed a Motion for Leave
to Take the Trial Testimony of Laura Brewster Telephonically. Prideaux
asserted that Brewster, Tyson’s investigator who made an initial determination
on whether Prideaux violated Tyson’s sexual harassment policy at its Carthage
location, was to be one of his primary witnesses. Brewster resided in Springdale,
Arkansas at the time of trial, which is over 100 miles outside the jurisdiction of
the Southern District of Mississippi, and she was no longer employed by Tyson.
Prideaux was therefore unable to subpoena Brewster to testify at trial. The
district court denied the motion.
      The Federal Rules of Civil Procedure require that witness testimony be
presented live, in open court. F ED. R. C IV. P. 43(a). An exception may be made
where the requesting party can establish “good cause in compelling
circumstances. . . .” Id. The Advisory Committee Notes state that a party who
could “reasonably foresee the circumstances offered to justify the transmission


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of testimony” will have difficulty in establishing good cause or compelling
circumstances. See F ED. R. C IV. P. 43(a) advisory committee’s note. With respect
to this standard, Prideaux argues only that Brewster was a “primary witness”
and that he had difficulty locating her. On the grounds that Prideaux had failed
to show good cause and could not demonstrate compelling circumstances, we
conclude that the district court did not abuse its discretion in denying the motion
to take trial testimony telephonically.
       D. Motion to Amend the Pre-Trial Order
       Four days before trial, Prideaux filed a Motion to Amend the Pre-Trial
Order to add Tyson employee Brian Manley as a witness. Manley would have
offered testimony that he was present when Brewster informed Prideaux that
she had found there was no merit to the claim of sexual harassment in Carthage.
Prideaux asserts that Manley had inadvertently not been included on the
witness list. Although Manley had been identified by Tyson in its pre-discovery
disclosures, Prideaux failed to reference Manley in his initial disclosures as an
individual likely to have discoverable information relevant to his claims and did
not list Manley in his response to Tyson’s interrogatories as an individual likely
to have knowledge of facts and circumstances related to his claims.
       The district court denied the motion, but allowed Prideaux to call Manley
as a rebuttal witness if testimony offered during Tyson’s case-in-chief warranted
his testimony. The district court did not abuse its discretion in denying
Prideaux’s attempt to add an improperly noticed witness on the eve of trial. See
F ED. R. C IV. P. 37(c)(1).
       E. Motion in Limine Regarding Testimony of Steven W. Patrick




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      On the second day of trial, Tyson requested to call Steven W. Patrick to
present testimony to rebut Prideaux’s claim that he had been retaliated against
with respect to his termination after Tyson acquired Central Industries. Patrick
had not been listed as a witness in the pre-trial order, and Prideaux moved to
exclude his testimony on that basis. Tyson responded, somewhat disingenuosly,
that because the court had not ruled on its motion in limine to exclude evidence
regarding Prideaux’s termination from Central Industries, it did not know until
the first day of trial that the termination would be a contested issue. The district
court denied Prideaux’s motion in limine.
      The district court’s ruling, however, is consistent with its treatment of
Prideaux’s attempt to present testimony from Manley without having provided
proper notice: the court allowed the improperly-noticed witness to be called only
as a rebuttal witness if testimony offered during the opposing party’s
case-in-chief warranted such testimony. The district court did not abuse its
discretion in allowing Tyson to elicit rebuttal testimony from Patrick.
      F. Tyson’s Motion in Limine Regarding Pine Bluff Litigation
      After the district court’s judicial estoppel ruling, Prideaux persisted in
seeking to introduce evidence that Tyson did not actually believe that he had
committed the alleged sexual harassment at the Pine Bluff facility. That
evidence included Tyson’s pleadings in the Pine Bluff lawsuit and testimony
from Paul Fletcher, Prideaux’s supervisor at the Pine Bluff facility at the time
of the alleged sexual harassment. Tyson filed a motion in limine seeking to
prevent Prideaux from presenting such evidence, asserting that it would be
largely irrelevant and prejudicial. Tyson argued that the sole issue in the case
was whether Tyson terminated Prideaux’s employment in retaliation for


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reporting alleged violations of the FMLA, or whether it terminated Prideaux
based on his inappropriate conduct at the Carthage facility after being
previously disciplined for similar behavior at the Pine Bluff facility. Thus, Tyson
contended, the Pine Bluff events were relevant only to show that Tyson
undisputedly issued Prideaux a written disciplinary action and a warning that
any further similar actions would result in his termination; whether Tyson
conducted a proper investigation of the Pine Bluff incident or imposed
appropriate disciplinary action would be irrelevant.
      The district court granted the motion in limine on the grounds that the
Pine Bluff incident was a collateral issue and “not the case that the jury should
be focusing on.” Having carefully reviewed the record, we conclude that the Pine
Bluff evidence had—at best—marginal relevance, and the district court therefore
did not abuse its discretion.
                                III. CONCLUSION
      The district court’s evidentiary rulings were not abuses of discretion. We
therefore AFFIRM the judgment of the district court.




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