IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60044

DAWN L. BEST, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

February 7, 2018

Lyle W. Cayce

Clerk

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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, nondiscriminatory 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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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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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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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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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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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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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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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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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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“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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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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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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