          Case: 18-15044   Date Filed: 11/20/2019   Page: 1 of 11


                                                       [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-15044
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:13-cv-03430-RWS



STEVE L. THOMAS,

                                                           Plaintiff-Appellant,

                                 versus

HOME DEPOT U.S.A., INC.,

                                                         Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                           (November 20, 2019)



Before WILSON, BRANCH, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Plaintiff Steve Thomas, proceeding pro se,1 appeals the final judgment

following a jury verdict in favor of Home Depot U.S.A., Inc. (“Home Depot”) on

Plaintiff’s failure-to-hire racial discrimination claim under Title VII of the Civil

Rights Act of 1964 (“Title VII”). No reversible error has been shown; we affirm.



I. Background



       Briefly stated, Plaintiff (a black male), submitted an online job application to

Home Depot. Plaintiff attended in-person interviews at two different store

locations. Immediately after Plaintiff’s second interview, the store manager

offered Plaintiff a part-time position. A few days later, however, the job offer was

rescinded.

       Plaintiff later filed a pro se civil action against Home Depot, alleging that

the decision to rescind his job offer was based -- at least in part -- on his race, in

violation of Title VII. Plaintiff’s civil litigation has since resulted in three trials in

the district court and now three appeals in this Court. The district court first


1
 We construe liberally pro se pleadings. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007).
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conducted a bench trial on Plaintiff’s claim, after which the district court entered

judgment in favor of Home Depot. We vacated the judgment and remanded on

grounds that Plaintiff was entitled to a jury trial. See Thomas v. Home Depot

USA, Inc., 661 F. App’x 575 (11th Cir. 2016) (unpublished).

      On remand, the district court conducted a jury trial. After Plaintiff’s case-in-

chief, the district court granted Home Depot’s motion for judgment as a matter of

law, pursuant to Fed. R. Civ. P. 50. On appeal, we once again vacated the

judgment and remanded for a new trial. We concluded that the district court

abused its discretion in excluding evidence of a comment made by one of Home

Depot’s store managers. We determined that -- when considered together with the

improperly excluded comment -- Plaintiff had submitted enough evidence to raise

a jury question about whether race was the real reason behind the decision to

rescind Plaintiff’s job offer. See Thomas v. Home Depot USA, Inc., 731 F. App’x

889 (11th Cir. 2018) (unpublished).

      On remand, the district court conducted a second jury trial which resulted in

a jury verdict in favor of Home Depot. On the verdict form, the jury indicated that

Plaintiff had failed to prove by a preponderance of the evidence that Plaintiff’s race

was a motivating factor in the decision to rescind Plaintiff’s job offer. This appeal

followed.

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II. Discussion



    A. Jury Instructions & Verdict Form2



       Plaintiff objects to the district court’s references in the jury instructions and

in the jury verdict form to Plaintiff’s truthfulness (or lack thereof) on his job

application. Plaintiff contends that, by mentioning Plaintiff’s truthfulness, the

district court sent a “subliminal message” to the jury to focus on Plaintiff’s

misrepresentations on his job application instead of on the issues pertinent to

Plaintiff’s claim for race discrimination.

       “We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party.” Conroy v.

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233 (11th Cir. 2004). If the jury

instructions and verdict forms “accurately reflect the law,” trial judges have “wide

discretion as to the style and wording employed.” Johnson v. Breeden, 280 F.3d

1308, 1314 (11th Cir. 2002).




2
  Given Plaintiff’s pro se status and the district court’s statement to Plaintiff that his objection
preserved his challenge to the jury instructions and to the verdict form, we treat the issue as
preserved and address Plaintiff’s argument on the merits.
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      In determining whether the jury instructions reflected accurately the law, we

examine the instructions “as a whole.” Gowski v. Peake, 682 F.3d 1299, 1314

(11th Cir. 2012). “Jury instructions must be put in context; we consider the

allegations of the complaint, the evidence presented, and the arguments of counsel

when determining whether the jury understood the issues or was misled.” Id. at

1315. Jury instructions must “give the jury a clear and concise statement of the

law applicable to the facts of the case.” Id. We will reverse only when “there is no

basis in the record for the instruction given.” Id. If, however, “the totality of the

instructions properly express the law applicable to the case, there is no error even

though an isolated clause may be inaccurate, ambiguous, incomplete or otherwise

subject to criticism.” Id.

      Title VII makes it unlawful for an employer to discriminate against a person

because of his race. 42 U.S.C. § 2000e-2(a)(1). To establish a claim for unlawful

discrimination under a mixed-motive theory -- as in this case -- a plaintiff must

prove by a preponderance of the evidence that race “was a motivating factor for

[the complained-of] employment practice, even though other factors also

motivated the practice.” See id. § 2000e-2(m); Desert Palace, Inc. v. Costa, 539

U.S. 90, 101 (2003). If a plaintiff satisfies his burden of proving unlawful

discrimination under Title VII, the employer may assert -- as an affirmative

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defense -- that plaintiff’s damages are limited by after-acquired evidence that

plaintiff misrepresented information on his job application. See Holland v. Gee,

677 F.3d 1047, 1065 (11th Cir. 2012); Wallace v. Dunn Constr. Co., 62 F.3d 374,

379-80 (11th Cir. 1995) (en banc).

       As an initial matter, we reject Plaintiff’s argument that Home Depot waived

its affirmative defense by failing to plead it sufficiently in its answer to Plaintiff’s

amended complaint. We have said that an affirmative defense is not waived --

even if a defendant fails to raise it in its answer -- if the pretrial order includes the

defense and, thus, gives fair notice to the plaintiff and to the court of the issues to

be tried. See Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182, 1185 (11th Cir.

1999). Because the pretrial order in this case included express reference to Home

Depot’s affirmative defense -- that “Plaintiff’s damages are barred by . . . after-

acquired evidence of his misrepresentations on his application for employment” --

no waiver occurred.3

       Considering the record as a whole, we see no reversible error in the jury

instructions or the jury verdict form. During the jury charge, the district court


3
  We also reject Plaintiff’s argument that Home Depot was unentitled to a jury instruction on its
affirmative defense because it failed to produce sufficient evidence at trial to satisfy its burden of
proof. At trial, Home Depot produced evidence that Plaintiff misrepresented his education and
work history on his job application; Plaintiff testified in response. On this record, Home Depot
was entitled to a jury instruction on its affirmative defense: whether Home Depot proved its
affirmative defense by a preponderance of the evidence was a question for the jury to decide.
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summarized the parties’ respective arguments. In pertinent part, the district court

described accurately Home Depot’s second affirmative defense: “that had

[Plaintiff] been truthful in the hiring process [Home Depot] would not have hired

him -- would not have offered him the position.”

      The district court then instructed the jury properly on the elements of

Plaintiff’s Title VII race discrimination claim and on the applicable burden of

proof. The district court explained that -- if the jury found that Plaintiff had

satisfied his burden of proof on each element of his Title VII claim -- the jury must

then decide whether Home Depot had proved its two affirmative defenses by a

preponderance of the evidence, including whether Plaintiff had failed to “provide

truthful information regarding his work experience during the hiring process.” The

jury verdict form mirrored the district court’s instructions.

      The jury instructions and the jury verdict form reflect accurately the

applicable law and were not misleading to the jury. To the extent the district court

mentioned Plaintiff’s “truthfulness” in instructing the jury, it was in the context of

describing Home Depot’s affirmative defense and Home Depot’s burden of

proving that defense. The district court said nothing that can be construed

reasonably as an improper comment about Plaintiff’s credibility or that was likely

to mislead the jury in its deliberations. The district court also instructed the jury

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correctly that it should consider Home Depot’s affirmative defenses -- including

whether Plaintiff had been truthful on his job application -- only after the jury

found that Plaintiff had proved by a preponderance of the evidence that race was a

motivating factor in Home Depot’s decision to rescind Plaintiff’s job offer. We

presume that the jury followed the district court’s instructions. See Gowski, 682

F.3d at 1315.

       The district court committed no error in instructing the jury on Home

Depot’s affirmative defense. To the extent Plaintiff contends he is entitled to a

new trial based on the misleading nature of the jury instructions and the jury

verdict form, we reject that argument as without merit.4



    B. Recusal



       Plaintiff next challenges the district court’s denial of Plaintiff’s motions for

recusal. Plaintiff contends that Judge Story displayed personal bias against him --




4
 In his appellate brief, Plaintiff raises no substantive argument challenging the district court’s
denial of Plaintiff’s motion for a new trial; that argument is not properly before us on appeal.
For background, see Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014)
(“an appellant abandons a claim when he either makes only passing references to it or raises it in
a perfunctory manner without supporting arguments and authority.”).
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and against pro se litigants in general -- during Plaintiff’s second and third trials.5

       We review for abuse of discretion the district court’s rulings on a motion for

recusal. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). We will

affirm a judge’s refusal to recuse unless “the impropriety is clear and one which

would be recognized by all objective, reasonable persons.” Id.

       A district court judge “shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned” or “[w]here he has a personal bias

or prejudice concerning a party.” 28 U.S.C. § 455(a), (b)(1). “Bias sufficient to

disqualify a judge under section 455(a) and section 455(b)(1) must stem from

extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias and

prejudice that it unfairly prejudices one of the parties.” Bailey, 175 F.3d at 968

(quotations omitted).

       As grounds for recusal, Plaintiff identifies the following examples of Judge

Story’s purported “personal bias.” During Plaintiff’s second trial, Judge Story (1)

excluded evidence (the store manager’s comment) crucial to Plaintiff’s case-in-

chief and (2) granted Home Depot’s motion for judgment as a matter of law.

During Plaintiff’s third trial, Judge Story (1) issued improper and biased jury



5
  The district court judge who presided over Plaintiff’s first bench trial granted Plaintiff’s motion
to recuse “based solely on Plaintiff’s perception of unfairness.” Plaintiff’s case was then
reassigned to Judge Story.
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instructions, (2) limited Plaintiff to 30 minutes for his closing and rebuttal

arguments, and (3) sustained “99.5 percent” of Home Depot’s objections during

trial.

         No unfair prejudice has been shown. That Judge Story ruled adversely to

Plaintiff -- without more -- is insufficient to demonstrate pervasive bias or

prejudice mandating recusal. See Liteky v. United States, 510 U.S. 540, 555

(1994). We also reject Plaintiff’s contention that Judge Story should have recused

himself after Plaintiff purportedly “conducted a public protest against Judge

Story.” Among other things, we are extremely reluctant to allow a party’s own

acts to trigger recusal. Nor can we “assume that judges are so irascible and

sensitive that they cannot fairly and impartially deal with resistance to their

authority or with highly charged arguments about the soundness of their decision.”

See Ungar v. Sarafite, 376 U.S. 575, 584 (1964) (concluding no recusal was

warranted based on a party’s “contemptuous remarks” and personal criticism of the

presiding judge).

         The district court abused no discretion in denying Plaintiff’s motions to




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recuse; we affirm.

       AFFIRMED.6




6
  In his appellate brief, Plaintiff contends that Home Depot “abused its discretion” in its method
of paying appellate costs awarded to Plaintiff. Construed liberally, Plaintiff’s argument raises no
challenge to a final appealable order issued by the district court.

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