Keefe Alsobrook v. UPS Ground Freight, Inc.

352 F. App'x 1
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 27, 2009
Docket08-5285
StatusUnpublished
Cited by11 cases

This text of 352 F. App'x 1 (Keefe Alsobrook v. UPS Ground Freight, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keefe Alsobrook v. UPS Ground Freight, Inc., 352 F. App'x 1 (6th Cir. 2009).

Opinions

LEON JORDAN, District Judge.

Keefe Alsobrook, Jay A. Irvin, Jimmy Jenkins, and Herman Lewis (collectively “appellants” or “plaintiffs”) appeal pro se [2]*2from a jury verdict in favor of their employer, UPS Ground Freight, Inc. (“UPS”). For the reasons that follow, we AFFIRM the district court.

I.

Appellants filed their complaint in the district court by counsel, alleging that UPS subjected them to disparate treatment, retaliation, and a hostile work environment in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 In material part, appellants alleged that they were retaliated against through intimidation, increased responsibilities, and undesirable work assignments.

The district court granted in part and denied in part UPS’s summary judgment motion. Correctly citing the “reasonable employee would have found the challenged action materially adverse” standard of Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the district court relied on the affidavit of each plaintiff in finding a genuine issue of material fact precluding summary judgment on the retaliation claims.

Appellants were represented by counsel from the initiation of their suit through the conclusion of the ten-day jury trial. At trial, the district court granted in part and denied in part UPS’s motion for judgment as a matter of law. The case went to the jury on the retaliation and hostile work environment claims.

In contrast to the law correctly applied in its summary judgment ruling, the district court charged the jury in pertinent part that each plaintiff “must show that he suffered a materially adverse change in the terms or conditions of employment because of the employer’s actions.” This retaliation standard was specifically rejected by the Supreme Court in Burlington Northern. Post-Burlington Northern, a plaintiff now instead “must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, 70, 126 S.Ct. 2405 (citation and quotation omitted).

The jury returned a defense verdict on all claims. Following trial, the plaintiffs filed a timely notice of appeal pro se.

II.

Appellants have not provided us with a trial transcript. We have before us only the transcript of the charge conference and the jury instructions, as submitted by the appellee. While appellants argue that their “counsel informed The District Court that she wanted the new law [Burlington Northern ] applied,” that contention is wholly unsupported by the record. The available transcript instead makes clear that there was no objection made to the erroneous charge. Therefore, our review is for plain error. See Fed.R.Civ.P. 51(d)(2); Bath & Body Works v. Luzier Personalized Cosmetics, 76 F.3d 743, 750 (6th Cir.1996).

Plain error is a “very high standard,” Maday v. Public Libraries of Saginaw, 480 F.3d 815, 820 (6th Cir.2007), and our review is discretionary. See Fed. R. Civ. P 51(d)(2) (“A court may consider a plain error in the instructions that has not been preserved ....”) (emphasis added); Puck[3]*3ett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). “[W]e examine the proceedings in their entirety in the light of the proofs at trial, to determine whether the errors affected substantial rights.” Rush v. Ill. Cent. R.R., 399 F.3d 705, 715 (6th Cir.2005) (citation, quotation, and internal alteration omitted). Appellants bear the burden of establishing plain error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1169 (5th Cir.1990) (“Plain error requires that plaintiff establish the challenged instruction was an incorrect statement of the law and was probably responsible for an incorrect verdict, leading to substantial injustice.”).

III.

The advisory committee notes to the 2003 amendments to Federal Rule of Civil Procedure 51 provide,

The court’s duty to give correct jury instructions in a civil action is shaped by at least four factors.
The factor most directly implied by a “plain” error rule is the obviousness of the mistake. The importance of the error is a second major factor. The costs of correcting an error reflect a third factor that is affected by a variety of circumstances. In a ease that seems close to the fundamental error line, account also may be taken of the impact a verdict may have on nonparties.

Fed.R.Civ.P. 51 advisory committee’s note (2003). The notes further suggest that the plain error standard is less likely to be met in civil cases than in criminal cases. Id. (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)) (“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken.... ”).

In the present case, the error below was obvious. However, on the record before us we cannot determine the degree of importance of that error because without a trial transcript we cannot assess the strength of the plaintiffs’ proof. We presume that the plaintiffs offered some evidence on their retaliation claims. Otherwise the district court likely would not have denied the motion for judgment as a matter of law.

Nonetheless, we find very little insight as to the strength or focus of that proof. The plaintiffs presumably testified at trial, but we have no record of the content or credibility of that testimony. It is the appellants’ duty to provide us with those portions of the transcript which they deem necessary and relevant to their issues on appeal. See Fed. RApp. P. 10(b)(1)(A), (2).

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Bluebook (online)
352 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keefe-alsobrook-v-ups-ground-freight-inc-ca6-2009.