                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 25, 2007
                             No. 06-14851                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 04-03497-CV-RLV

SAMUEL D. SAUNDERS,


                                                           Plaintiff-Appellant,

                                  versus

ED VOYLES CHRYSLER, INC.,
ED VOYLES AUTOMOTIVE GROUP, INC.,


                                                        Defendants-Appellees.


                       ________________________

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

                              (July 25, 2007)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
        Samuel Saunders, a Caucasian male, appeals from a jury verdict for Ed

Voyles Chrysler, Inc. and Ed Voyles Automotive Group, Inc. (Voyles). Saunders

alleges that Voyles retaliated against him by ordering him to repay a past-due

salary advance and firing him after he complained that dealership employees used

racial slurs and supervisors threatened two black employees with pay cuts. On

appeal, we consider whether the district court abused its discretion when it

excluded deposition testimony as redundant, refused to admit a letter into evidence

on authentication grounds, and limited the cross-examination of a witness. We

also examine whether the district court improperly instructed the jury concerning

Saunders’ claim or the law governing retaliation, or erred on the special verdict

form.

        First, Saunders argues the district court abused its discretion by excluding

deposition testimony of four witnesses as cumulative evidence. See Conroy v.

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (reviewing

a district court’s evidentiary rulings for abuse of discretion). Even relevant

evidence “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice . . . or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Fed. R. Evid. 403. All four

witnesses for whom Saunders sought to introduce deposition excerpts testified at



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trial. Furthermore, the court explicitly noted that Saunders could use the excerpts

for impeachment purposes if the witnesses contradicted earlier testimony. The

district court did not abuse its discretion by ruling that the deposition excerpts were

cumulative and would constitute a waste of time if read into the record.

      Saunders also objects to the district court’s refusal to admit a letter written to

the EEOC by Voyles’ prior counsel when the witness on the stand did not

recognize the letter. The court did not abuse its discretion by excluding the letter

for insufficient authentication. See Conroy, 375 F.3d at 1232.

      Saunders argues the district court abused its discretion by limiting the cross-

examination of a witness about a different letter that had already been admitted

into evidence. Even if the limitation of the cross-examination was improper,

Saunders did not make an offer of proof as to what information the continued

questioning would elicit. The district court’s choice to allow the jury to review the

letter rather than permit questioning was not an abuse of discretion. See Conroy,

375 F.3d at 1232.

      Finally, Saunders argues the district court erred in the jury instructions and

special verdict form. Saunders raises two preserved objections to the jury

instructions, the use of “harassment” instead of “discriminatory practice,” and the

failure to mention the threatened pay cuts. The district court instructed the jury



                                           3
generally that retaliation for “opposing unlawful employment practices” included

discriminatory treatment of employees based on race. The jury had heard the facts

Saunders presented explaining his complaints were based on both the racial slurs

and threatened pay cuts. It found his complaints were not a motivating factor in

any adverse employment action. Although the district court improperly instructed

the jury on a defense that only applies in sexual harassment cases, Saunders has not

demonstrated he was prejudiced by the error. See Oladeinde v. City of

Birmingham, 230 F.3d 1275, 1295-96 (11th Cir. 2000) (reviewing jury instructions

de novo but reversing only if the instructions misstated the law or misled the jury

and prejudiced the party).

      The remainder of Saunders’ arguments were not presented to the district

court and are reviewed for plain error: (1) that the jury should not have considered

whether Voyles had a policy against harassment or whether Saunders had followed

that policy and (2) that the jury should not have been limited to finding termination

as the adverse employment action. See Farley v. Nationwide Mut. Ins. Co., 197

F.3d 1322, 1329, 1330-31 (11th Cir. 1999) (reviewing verdict form and jury

instructions together under a plain error standard for unpreserved objections).

Although the jury ultimately found that Saunders’ complaints did not comply with

Voyles’ anti-harassment policy, it also found his complaints about harassment



                                          4
were not a motivating factor in any adverse employment action. Even if the

special verdict’s question about Voyles’ harassment policy was error, the jury

found he was not fired because of his complaints. Second, the district court’s

instruction to the jury regarding an adverse employment action was correct; any

problem in the verdict form was simply an omission of one of plaintiff’s theories.

Saunders failed to insist the district court include one of his theories of the case,

that the cutting of the cash advance was an adverse employment action. Finally,

Saunders fails to show any error was “so fundamental as to result in a miscarriage

of justice.” Maiz v. Virani, 253 F.3d 641, 676 (11th Cir. 2001) (“Reversal for plain

error in the jury instructions or verdict form will occur only in exceptional cases

where the error is so fundamental as to result in a miscarriage of justice”).

Accordingly, we affirm the jury’s verdict.

      AFFIRMED.




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