* District Judge of the Northern District of Texas, sitting by designation.

 

** 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-31191

_______________

FRED O. OGUNYEMI,

Plaintiff-Appellant,

VERSUS

HAZEL BEARD, et al.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CV-767)

_________________________

March 11, 1998

Before JONES and SMITH, Circuit Judges, and FITZWATER,* District

Judge.

PER CURIAM:**

Fred Ogunyemi sued under 42 U.S.C. § 1983, alleging that the

mayor and other city officials of Shreveport, Louisiana, wrongfully

terminated his employment with the city in retaliation for his

exercise of First Amendment rights. Ogunyemi was twice fired from
2

his position as senior auditor with the City, both times, he

claims, because he had exposed or threatened to expose alleged

wrongdoing by the defendant officials. The defendants claim that

Ogunyemi was dismissed because he was demonstrably incompetent to

perform his duties, and because he directly refused to perform

certain assignments. At the close of trial, the jury deadlocked,

and the magistrate judge granted the defendants' motion for

judgement as a matter of law (“j.m.l.”). We affirm.

I.

Ogunyemi first urges that the defendants failed to state their

motions for j.m.l. with adequate specificity. Indeed, FED. R. CIV.

P. 50(a) mandates that a motion for j.m.l. “shall specify the

judgment sought and the law and facts on which the moving party is

entitled to judgment.” Ogunyemi did not object to any alleged lack

of specificity in the district court, however, so even if

erroneous, the court's failure to demand specificity would not rise

to the level of plain error, the standard of review for errors

raised for the first time on appeal. See, e.g., In re Hudson, 107

F.3d 355, 357 (5th Cir. 1997). 

Even if Ogunyemi had preserved this alleged error for

appellate review, his argument would fail, for we consistently have

excused technical noncompliance with rule 50 where the purpose of

the requirement has been satisfied. See, e.g., Greenwood v.
3

Societe Francaise de Transportes Maritime, 111 F.3d 1239, 1242 (5th

Cir. 1997). The dual purposes of rule 50's specificity requirement

are to prevent the non-moving party from being “sandbagged” without

having a chance to address the insufficiencies in his case and to

allow the court to re-examine the sufficiency of the evidence as a

matter of law. See Guilbreau v. W.W. Henry Co., 85 F.3d 1149-50

(5th Cir. 1996). Those purposes obviously have been met here.

Ogunyemi's lawyer demonstrated that he knew the basis of the

motions when he responded to defendant Cary's initial motion.

Further, nothing there could have “sandbagged” Ogunyemi. The

motions assertedSSand the court concludedSSthat Ogunyemi was not

fired in retaliation for his critical speech, but rather that he

was insubordinate and incompetent. That was the central issue of

the case, and the plaintiff's lawyer could not have been

“sandbagged” thereby. 

II.

To prevail on his First Amendment retaliation claim, Ogunyemi

must show that (1) his speech involved a matter of public concern,

(2) his interest in the speech outweighs the City's efficiency

interest in being able to fire whomever it cares, and (3) “[his]

speech motivated the defendants' decision to fire [him].” Thompson

v. City of Starkville, Miss., 901 F.2d 456, 460 (5th Cir. 1990).

Here, we will look directly to the third prong: whether the
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defendants “would have reached the same decision as to [the

termination] even in the absence of the protected conduct.”

Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

In reviewing a j.m.l., we view all the evidence in the light

most favorable to the nonmovant and determine whether, as a matter

of law, reasonable jurors could not arrive at a contrary verdict.

See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en

banc), overruled on other grounds by Gatreaux v. Scurlock Marine,

Inc., 107 F.3d 331 (5th Cir. 1997). After a thorough review of the

briefs and the record, we agree with the trial court. Ogunyemi was

a poor employee, incapable of performing on his own, and unwilling

to accept supervision. He was properly dismissed for incompetence

and insubordination, and no reasonable juror could have found

otherwise.

AFFIRMED.