     Case: 18-40130      Document: 00514759666         Page: 1    Date Filed: 12/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-40130                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                     December 13, 2018
ELVA GARZA,
                                                                        Lyle W. Cayce
              Plaintiff - Appellant                                          Clerk


v.

JAMES A. CAPLIN, Medical Doctor, Professional Association,

              Defendant - Appellee




               Appeal from the United States District Court for the
                           Southern District of Texas
                             USDC No. 2:16-CV-295


Before SMITH, BARKSDALE, and HO, Circuit Judges.
PER CURIAM:*
       Dr. James Caplin owned and operated a medical practice in Corpus
Christi. He employed plaintiff Elva Garza for about 29 years in various at-will
capacities, including CEO and later COO.                 Garza claims that she was
subsequently fired when she refused to fire another long-time employee of the
medical practice, Janie Garcia. She says that she refused because she believed




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40130
that firing Garcia would amount to age discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA). See 29 U.S.C. § 623(a)(1).
      In this action, Garza claims, among other things, retaliatory discharge
under the ADEA. The ADEA, in relevant part, makes it “unlawful for an
employer to discriminate against any of his employees . . . because such
individual . . . has opposed any practice made unlawful” by the ADEA itself.
Id. § 623(d). Garza failed to move for judgment as a matter of law following
the submission of evidence. The jury found for Dr. Caplin on all issues. The
district court denied Garza’s motion for a new trial. Garza now appeals only
the dismissal of her ADEA retaliatory discharge claim, asserting (1) that the
verdict is supported by legally insufficient evidence and (2) that the third jury
instruction set out an incorrect statement of law.
      We first consider Garza’s claim that there was legally insufficient
evidence to support the jury’s verdict on its third jury question: “Do you find
that Plaintiff Elva Garza would not have been fired but for her having engaged
in a protected activity, if any?” It is unclear from Garza’s brief whether she
merely challenges the sufficiency of the evidence pursuant to the standard
provided in Federal Rule of Civil Procedure 50(a) (“[A] reasonable jury would
not have a legally sufficient evidentiary basis to find for the party on that
issue.”), or whether she challenges the district court’s denial of her motion for
a new trial pursuant to Federal Rule of Civil Procedure 59. If we construe
Garza’s appeal as Rule 50(a)-based, our standard of review is very deferential
where, as here, a plaintiff did not move for judgment as a matter of law in the
district court. “The absence of a motion challenging the evidence prior to
submission to the jury precludes the appellate court from evaluating and
weighing the evidence to test its sufficiency.” Polanco v. City of Austin, Tex.,
78 F.3d 968, 974 (5th Cir. 1996) (citing Bunch v. Walter, 673 F.2d 127, 130 n.4
(5th Cir. 1982)). Instead, we merely consider “whether there was any evidence
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                                   No. 18-40130
to support the jury’s verdict, irrespective of its sufficiency or whether plain
error was committed which, if not noticed, would result in a manifest
miscarriage of justice.” Bunch, 673 F.2d at 129–30 (internal quotation marks
omitted) (quoting Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.
1978)). If we construe Garza’s appeal as Rule 59-based, then the standard of
review is even more deferential: The district court’s denial of a Rule 59 motion
should “be affirmed unless, on appeal, [Garza] makes a clear showing of an
absolute absence of evidence to support the jury’s verdict.” Whitehead v. Food
Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998) (internal quotation marks,
citations, and emphasis omitted). Under either standard of review, Garza
simply cannot meet her high burden. The jury heard testimony with respect
to increased tensions in the workplace between Garza and Dr. Caplin, and
heard further testimony that Garza “refus[ed] to do her job.” There was ample
evidence to support the verdict.
      We next consider Garza’s claim that the third jury instruction set out an
incorrect statement of law. Because Garza did not timely object to the jury
instruction as required by Federal Rule of Civil Procedure 51(c), we review for
plain error. See In re Isbell Records, Inc., 774 F.3d 859, 870 (5th Cir. 2014) (“If
a party does not object [to a jury instruction before the jury begins to
deliberate], this court reviews jury instructions for plain error.”) (citing Dahlen
v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002)).
      “To overturn a verdict for plain error in the instructions, we must find
an obviously incorrect statement of law that ‘was probably responsible for an
incorrect verdict.’” Tompkins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000) (internal
citation omitted) (quoting Auto. Grp. v. Cent. Garage, Inc., 124 F.3d 720, 730
(5th Cir. 1997)).    We are “exceedingly deferential to the trial court.”       Id.
Assuming, without deciding, that we could instead construe Garza’s claim in
the context of the district court’s denial of her motion for a new trial, our
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standard of review is not plain error but is “prejudicial error.”        Scott v.
Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989). In this Rule 59 context, there
is prejudicial error if “the jury’s verdict [is] ‘against the great—not merely the
greater—weight of the evidence.’” Id. (quoting Conway v. Chem. Leaman Tank
Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980)). According to the third jury
instruction, Garza could prevail on her retaliation claim only if her refusal to
fire Garcia was based on a “good-faith, reasonable belief” that the firing was
based on intentional age discrimination. Garza contends that the “good-faith,
reasonable belief” standard is an incorrect statement of law. But this language
is based on the Fifth Circuit Pattern Jury Instructions. The Pattern Jury
Instructions provide that an ADEA retaliation claim jury charge instruction
should follow the corresponding Title VII jury charge instruction. See Fifth
Circuit District Judges Association Committee on Pattern Jury Instructions,
PATTERN JURY INSTRUCTIONS, CIVIL CASES § 11.17 n.4. And the corresponding
Title VII committee notes to the jury charge state: “If the claim is for opposing
an employment practice, the plaintiff must prove that he or she had a
reasonable good-faith belief that the practice was unlawful under Title VII.”
Id. § 11.5(A) (emphasis added) (footnote omitted). Accordingly, we conclude
that the third jury instruction does not amount to an “obviously incorrect
statement of law.” Tompkins, 202 F.3d at 784 (citing Auto. Grp., 124 F.3d at
730). Nor, of course, does the third jury instruction amount to “prejudicial
error.” Scott, 868 F.2d at 789.
      AFFIRMED.




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