     Case: 17-60044      Document: 00514340417         Page: 1    Date Filed: 02/07/2018




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

                                      No. 17-60044
                                                                                Fifth Circuit

                                                                              FILED
                                                                        February 7, 2018

DAWN L. BEST,                                                            Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

WILLIAM D. JOHNSON, President and Chief Executive Officer of Tennessee
Valley Authority,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:15-CV-86


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dawn Best sued the CEO of the Tennessee Valley Authority alleging
gender and age discrimination in violation of Title VII and the Age
Discrimination in Employment Act. The district court held in favor of the
defendant on age discrimination, and a jury gave a defense verdict on gender
discrimination. We AFFIRM in part, and VACATE and REMAND in part.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60044
                FACTUAL AND PROCEDURAL BACKGROUND
        After working at the Tennessee Valley Authority (“TVA”) for
approximately twenty years, Dawn Best, a 56-year old woman, applied for a
general manager of customer relations position in 2013. Previously, Best had
served as both an engineer and a customer service manager. Best was not
selected. After an extensive application process and multiple interviews, TVA
selected John Malone, a younger male employee, for the position.
        Best filed her complaint in 2015, alleging gender and age discrimination
under Title VII and the Age Discrimination in Employment Act (“ADEA”). On
September 19, 2016, the parties began a two-day trial. On the second day of
trial, the parties rested, and TVA moved for judgment as a matter of law. The
court granted the motion with respect to the age discrimination claim, but
denied the motion with respect to the gender discrimination claim, allowing
the claim to go before the jury. The jury ultimately returned a verdict in favor
of TVA and the court thereafter entered judgment in favor of TVA for both the
age and gender discrimination claims.


   I.      Jury Instructions
        According to the district court’s local rules, the parties were required to
email proposed jury instructions to the court fourteen days before trial. See
Northern District of Mississippi Local Rule 51. Best proposed two instructions,
among others, relating to her theory of sex-plus-age discrimination. Plaintiff’s
Proposed Jury Instruction 14 (“P-14”) stated, “[t]he court instructs the jury
that discriminating against older females is unlawful sex discrimination.”
Plaintiff’s Proposed Jury Instruction 16 (“P-16”) similarly stated that “[i]n
determining the issue of whether there was some legitimate, non-
discriminatory reason for Plaintiff Dawn Best’s discharge . . . it is not a defense
that Defendant based the employment decision either upon Ms. Best’s age, or
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                                 No. 17-60044
upon her race.” We note that the instruction erroneously refers to Best’s
“discharge,” when in fact she was passed over for a promotion.
      Four days before trial, however, the district court held on TVA’s motion
that Best was not entitled to a jury trial for her ADEA age discrimination
claim. Best’s age discrimination claim therefore would be heard by the district
court outside the presence of the jury. After partially granting TVA’s motion
on the age discrimination claim and denying on the gender discrimination
claim, the court asked if the parties wished to submit additional jury
instructions. Best expressed a desire to discuss Proposed Jury Instruction 14,
and the court invited her to raise the issue at the jury charge conference.
      Following a short recess, the court began the jury charge conference.
TVA objected multiple times to any mention of age in the instructions because
the ADEA claim would not be decided by the jury. Each time TVA objected,
Best agreed that removing mention of age from the instructions would be
appropriate. For example,
      THE COURT: Ms. Roelofs, do you have any objection to that P7?
      MS. ROELOFS [Defense Counsel]: I have an objection to the
      bottom. It mentions gender and age, and I think we need to strike
      that.
      MR. WAIDE [Plaintiff’s Counsel]: She’s right, Your Honor. It
      should be gender was a motivating factor. Age needs to come out
      of it.

Minutes after the conference concluded, however, the court initiated a second
conference to address what the judge described as an apparent “disagreement
on this age factor.” The court began the second conference by confirming that
Best had previously agreed to remove references to age from the instructions:
      THE COURT: . . . [I]t was my understanding that y’all didn’t object
      to taking out age[.]
      MR. WAIDE: That’s true, Your Honor.
      ...


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                                  No. 17-60044
      THE COURT: You agree that the instructions that you submitted
      having to do with age discrimination are inapplicable?
      MR. WAIDE: Absolutely, yes, sir, inapplicable. Because age is a
      question for the Court.
      THE COURT: For the Court. Okay.

Nonetheless, Best challenged Defendant’s Proposed Jury Instruction 7 (“D-7”),
which stated,
      You have heard evidence about Plaintiff’s allegation that she was
      discriminated against based on age. The only claim you are
      deciding is whether Plaintiff was discriminated based on her
      gender. You must disregard any evidence you hear that is related
      to Plaintiff’s age. Any evidence you hear about Plaintiff’s age claim
      cannot inform your decision about her gender clam.

In response to Best’s objection to D-7, the court stated:
      THE COURT: . . . I don’t understand what your complaint is. As I
      read it, it’s simply limiting the consideration of the jury in its
      liability stage to gender discrimination not age.
      MR. WAIDE: Yes, sir . . . Here’s the problem, it says you must
      disregard any evidence related to age. But I just — I don’t believe
      that’s correct, Your Honor, in view of the fact that discrimination
      against older women is sex discrimination. So those last two — I
      don’t have any problem with the first two sentences; it’s the last
      two sentences that are in error. The first two sentences are okay.
      ...
      THE COURT: Okay. Suppose we just amend this and the first two
      sentences, I think — I think everybody would agree with — the
      second sentence says “the only claim you’re deciding is whether the
      plaintiff was discriminated based on her gender.” Do you agree
      with that?
      MR. WAIDE: Yes, sir.

Accordingly, the court did not affirmatively instruct the jury to consider age in
the gender discrimination claim, but at the same time, it did not instruct the
jury to disregard age as a factor. At no point during the charge conference, nor
before or after the court read the jury instructions, did Best specifically object
to the court’s decision not to include proposed instructions P-14 or P-16.

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                                       No. 17-60044


   II.       Allen Charges
         After receiving their instructions, jurors began deliberations at 4:49 p.m.
At 6:23 p.m., the jury returned with a verdict for TVA. Best then requested a
jury poll. One juror, Sandra Clanton, stated she had not voted for the verdict.
Refusing to accept a verdict that was not unanimous, the court instructed the
jury to return to deliberations at 6:26 p.m. After the jury retired, Best moved
for a mistrial, arguing Ms. Clanton was now under “immense pressure” to
return a defense verdict because of the public discussion of her vote. The court
denied the motion, noting that Best had been the one to request the jury poll
leading to the public discussion. The judge then stated that he would give an
Allen charge “[i]f we don’t hear from them shortly[.]” 1
         At 6:38 p.m., 12 minutes after retiring, the judge received a note from
the jury asking what would happen if they could not agree. The judge recalled
the jury and issued a modified Allen charge before again retiring them at 6:42
p.m. Best again moved for a mistrial, stating that “the parties were not asked
about the position on the Allen charge.              I understand an Allen charge is
normally proper. But, in this case, . . . [i]t’s bound to put enormous pressure
on that one juror back there.” The court denied the motion, agreeing that
although there was some level of pressure, the language of the charge
instructed the jurors to adhere to their conscientious beliefs.
         At 6:57 p.m., 15 minutes after the first Allen charge, the judge stated,
“[l]et the jury come in. I just gave them one stick of dynamite. I’m going to give
them two.” Neither party objected. When asked whether a unanimous verdict



         1“‘Allen’ refers to the case Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.
Ed. 528 (1896). The term is used generally in reference to supplemental instructions urging
a jury to forego their differences and come to a unanimous decision.” United States v. Bottom,
638 F.2d 781, 786 n.4 (5th Cir. Unit B Mar. 1981).
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                                 No. 17-60044
was possible, the jury foreperson responded that Ms. Clanton “is saying now
that she misunderstood what we were deliberating about . . . . What you said
was your part, the age part, she was considering that instead of just the
gender.” Best then requested an additional jury instruction, one “that earlier
had been refused.” The court agreed to discuss the request later. When the
judge asked three jurors whether they believed further deliberations could
result in a verdict, one answered in the negative, one said it was possible, and
one stated she was not sure. The court then issued a second modified Allen
charge.
      As the court was issuing the charge, Ms. Clanton laughed. The judge
stated, “this is not funny.” Ms. Clanton replied, “I know it’s not funny, Your
Honor,” and the judge continued the charge. At 7:03 p.m., the jury returned to
the deliberation room.
      Best then requested an additional instruction that discrimination
against “older women” is illegal discrimination. The court denied the motion,
opting instead to “let them stay out a little longer.” At 7:24 p.m., 21 minutes
after the second Allen charge, the jury returned with a unanimous verdict for
TVA. The court then issued a judgment against Best on both her gender
discrimination and age discrimination claims.             Best timely appealed,
challenging the judgment only with respect to her gender discrimination claim.
Thus, our affirming the decision as to age discrimination needs no analysis.


                                DISCUSSION
      Best raises two issues on appeal. First, she argues that the district court
erred by not instructing the jury on a “sex-plus-age” theory of gender
discrimination under Title VII. Second, she argues that the district court erred
when it issued two Allen charges within a 21-minute time period.


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                                   No. 17-60044
   I.      Jury Instructions
        When a party makes a specific and timely objection to jury instructions,
“we review that objection ‘under an abuse of discretion standard, affording the
trial court substantial latitude in describing the law to the jurors.’” Jimenez v.
Wood Cnty., Tex., 660 F.3d 841, 845 (5th Cir. 2011) (en banc) (quoting United
States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009)). If a party fails to timely
object according to the requirements of Federal Rule of Civil Procedure 51,
however, we review according to the “exceedingly deferential” plain error
standard. Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002).
        Rule 51(c)(1) states that “[a] party who objects to [a jury] instruction or
the failure to give an instruction must do so on the record, stating distinctly
the matter objected to and the grounds for the objection.” Under Rule 51(b)(2),
such an objection must occur after the court announces its proposed
instructions, but before the court delivers the instructions to the jury. The
standard we announced in Jimenez is clear: “a specific, formal, on-the-record
objection is required.” 660 F.3d at 845.
        Other than initially submitting her proposed jury instructions to the
court per the local rules, Best first mentioned proposed instruction P-14 after
both parties rested just prior to the first charge conference. Although the court
invited her to discuss P-14 at the charge conference, she failed to do so, instead
agreeing repeatedly to remove mention of age from the instructions. During
the second charge conference, Best chose only to object to the portion of
proposed instruction D-7, stating jurors must “disregard any evidence you hear
that is related to Plaintiff’s age. Any evidence you hear about Plaintiff’s age
claim cannot inform your decision about her gender claim[.]” When asked if he
would be satisfied if those two sentences were removed, Best’s counsel replied,
“Yes, sir.” Best made no further objections to the instructions before the court
issued them to the jury.
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                                    No. 17-60044
      Based on the record, the only possible objections Best made to the jury
instructions are: (1) submitting her proposed instructions prior to trial, (2)
objecting to the last two sentences of proposed instruction D-7, and (3)
proposing the court issue a sex-plus-age instruction after the jury had initiated
deliberations.
      We have held that submission of proposed jury instructions alone is
insufficient to preserve an objection on appeal. See Russell v. Plano Bank &
Trust, 130 F.3d 715, 719 (5th Cir. 1997). To fulfill the requirements of Rule
51, a party relying on the submission of proposed instructions must
nonetheless make “a general objection to the court’s failure to include its
requested instructions[.]” Id. at 720. Here, not only did Best fail to raise such
a formal objection, she agreed when the court asked, “You agree that the
instructions that you submitted having to do with age discrimination are
inapplicable?” Because Best agreed that instructions explaining sex-plus-age
discrimination not be given to the jurors, we cannot conclude that her answer
to the court’s question “made [her] position sufficiently clear to the court to
satisfy Rule 51’s objection requirement.” Kelly v. Boeing Petroleum Servs., Inc.,
61 F.3d 350, 361 (5th Cir. 1995).
      Best’s desire to make an argument concerning the inclusion of P-14 prior
to the first charge conference and then failing to follow-through when given
the opportunity also cannot satisfy Rule 51. Despite the second opportunity to
make objections, Best’s failure to utilize the second charge conference and raise
a formal objection solidifies the conclusion that she viewed the alteration to
proposed instruction D-7 as sufficient. Finally, her objection urging that the
court issue a sex-plus-age instruction following initiation of deliberations
occurred too late to qualify under the timeliness requirement of Rule 51. See
Jimenez, 660 F.3d at 845.


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                                     No. 17-60044
         We therefore review the issue for plain error. To succeed, Best must
show: “(1) that an error occurred; (2) that the error was plain, which means
clear or obvious; (3) the plain error must affect substantial rights; and (4) not
correcting the error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings.”           Russell, 130 F.3d at 721 (quoting
Highlands Ins. Co. v. Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1031–32 (5th Cir.
1994)). We need not decide “whether the [instruction] was erroneous, because
any error in this regard was not plain.” Jimenez, 660 F.3d at 847. Indeed,
when the proposed instructions call for an extension of well-settled precedent,
“the district court’s failure to do so cannot be plain error.” Id.
         Best conceded at trial that the Fifth Circuit has yet to decide whether
sex-plus-age discrimination is gender discrimination under Title VII.
Similarly, in her principal brief, she argues that an analogous Fifth Circuit
case nonetheless opens the door to sex-plus-age discrimination under Title VII.
See Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir.
1980). Best correctly notes, though, that Jefferies focused on sex-plus-race
discrimination under Title VII because both race and sex are explicitly
protected under the statute. See id. As in Jimenez, even if the district court
erred in failing to instruct the jury on a sex-plus-age theory under Title VII,
the failure to instruct on a theory of recovery not yet addressed by our circuit
is not plain error. See 660 F.3d at 847.
         The district court, therefore, did not plainly err in failing to adopt Best’s
proposed jury instructions.


   II.      Allen Charges
         When determining whether a district court issued an Allen charge in
error, we traditionally evaluate both the semantic content of the charge and
whether “the circumstances surrounding the use of the charge were coercive.”
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                                 No. 17-60044
United States v. Andaverde-Tinoco, 741 F.3d 509, 515 (5th Cir. 2013) (citing
United States v. Winters, 105 F.3d 200, 203 (5th Cir. 1997)). While we review
the use of an Allen charge for abuse of discretion, we review for plain error
when the party fails to properly object. Id. Here, TVA argues that Best failed
to properly object when the district court issued two Allen charges to the jury.
      In Andaverde-Tinoco, the defendant generally objected to a proposed
Allen charge and requested a mistrial in the alternative. Id. He argued that
because “the jurors already said that they couldn’t reach a verdict and they’re
divided numerically,” the Allen charge was inappropriate. Id. Although we
held that such an objection was insufficient to challenge the semantic content
of the charge, the objection sufficiently “address[ed] the coerciveness of the
charge under the circumstances and thus preserves that issue for appeal.” Id.
at 516.
      Here, upon issuance of the first Allen charge, Best’s counsel stated,
      MR. WAIDE: . . . I don’t mean to be difficult; but, at the same time,
      Your Honor, the parties were not asked about the position on the
      Allen charge. I understand an Allen charge is normally proper.
      But, in this case, where we have one juror that we already know is
      the minority, and the instructions single her out by saying, if
      there’s one or more of you that’s in the minority — when we know
      we had one in the minority. So I again, move the court for a
      mistrial. It’s bound to put immense pressure on that one juror
      back there.

Just as in Andaverde-Tinoco, we hold that Best’s language sufficiently
addressed the coerciveness of the charge under the circumstances and
therefore preserved the issue for appeal. See id. Best does not challenge the
semantic content of the charge, only its coerciveness. We proceed under an
abuse of discretion standard.
      TVA counters that even if Best raised an objection to the first Allen
charge, she did not object to the second, and therefore cannot challenge the

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                                  No. 17-60044
“successive nature of the charges” as coercive.        While Andaverde-Tinoco
admittedly addressed the use of only a single Allen charge, we nonetheless find
the holding applicable. Best’s objection clearly indicated a challenge to the
first Allen charge, namely the “immense pressure” it could place on Ms.
Clanton. When a party’s objection to an Allen charge sufficiently “addresses
the coerciveness of the charge under the circumstances,” the issue is preserved.
See id.
      The trial court’s response to the first objection also signaled futility in
future objections relating to “pressure” on Ms. Clanton:
      THE COURT: Well, it puts pressure on them whether it’s one or
      whether we knew there was one or not. But, sure, there’s pressure.
      But I also told them to not yield their conscientious beliefs or
      convictions for the mere purpose of reaching a verdict. So the
      motion for a mistrial is denied.

“A party may be excused from the requirement of making a specific objection
only where ‘the party’s position previously has been made clear to the trial
judge and it is plain that a further objection would be unavailing.’” Russell, 130
F.3d at 720 (quoting 9A WRIGHT & MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2553 (2d ed. 1995)). Regardless of how many Allen charges the
court issued, the basis for any future objections would have been the same:
there was a danger of undue pressure on the holdout juror, Ms. Clanton. TVA’s
argument that Best needed to repeat her objection for the second Allen charge
is unavailing.
      In determining whether the district court coercively employed an Allen
charge, we look to the totality of the circumstances. Andaverde-Tinoco, 741
F.3d at 517. Best cites to the single Fifth Circuit case involving successive
Allen charges. United States v. Fossler, 597 F.2d 478 (5th Cir. 1979). There
we held that the district court coerced the jury when it issued two separate
Allen charges. Id. at 485. The jury had begun deliberating at noon on a Friday.
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                                   No. 17-60044
Id. at 483. After five hours of deliberation, the jury foreman sent a note to the
judge stating they could not reach unanimous agreement. Id. The judge issued
an oral Allen charge, and deliberations continued for another four hours before
the jury yet again informed the court it could not reach a verdict. Id. The jury
then retired for the weekend. Id. After five additional hours of unsuccessful
deliberation on Monday, the court issued a second Allen charge in writing. Id.
The jury then returned a verdict approximately one hour later.             Id.   In
concluding the successive charges were coercive, we looked primarily to two
factors: (1) the jury’s indication on three separate occasions that they were
deadlocked, and (2) the short period of time between the second Allen charge
and the verdict. See id. at 485.
      Here, the totality of circumstances indicate a similarly coercive effect.
To be sure, while the Fossler jury signaled deadlock on three separate
occasions, at least one juror here answered that a verdict seemed possible when
polled prior to the second charge. Unlike Fossler, though, the amount of time
between the first indication of possible deadlock and the final verdict was less
than one hour. Such a short period of time has traditionally characterized the
borderline for a single Allen charge, let alone two. Cf. Andaverde-Tinoco, 741
F.3d at 517 (two hours between deadlock and verdict; single charge); United
States v. Bottom, 638 F.2d 781, 788 (5th Cir. Unit B Mar. 1981) (three hours
between deadlock and verdict; single charge); United States v. Scruggs, 583
F.2d 238, 241 (5th Cir. 1978) (48 minutes between deadlock and verdict; single
charge). While it might not have been erroneous to issue the first Allen charge
in response to the jury note inquiring about unanimity, issuing the second
charge so promptly created too great a risk of coercion. After sending the jury
to deliberate following the first charge at 6:38 p.m., the judge recalled the jury
sua sponte 19 minutes later, remarking, “[l]et the jury come in. I just gave
them one stick of dynamite. I’m going to give them two.” To conclude that less
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                                 No. 17-60044
than twenty minutes was sufficient to allow the jury to deliberate according to
their newly received Allen charge fails to embody the “reflection and care”
necessary to avoid coercion. See, e.g., United States v. Patel, 485 F. App’x 702,
715 (5th Cir. 2012).
      The court’s recalling the jury so quickly after the first charge created too
likely a signal to the holdout juror that a unanimous verdict, not continued
deliberation, was expected. It is therefore not surprising that the jury returned
a verdict within 21 minutes of the second charge — the same amount of time
between the first charge and its subsequent recall to receive the second charge.
Taken in their totality, the circumstances lead us to conclude that the district
court abused its discretion in issuing two Allen charges so close together
temporally.


                                CONCLUSION
      We AFFIRM the district court’s judgment concerning the age
discrimination claim. We VACATE the judgment with respect to the gender
discrimination claim and REMAND for a new trial.




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