United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-20363 

____________ 

Daniel Arturo Garcia-Ascanio, 

Plaintiff—Appellant, 

versus

Spring Independent School District, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-1847 

______________________________ 

Before Wiener, Graves, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge: 

 In this case involving the Uniformed Services Employment and 

Reemployment Rights Act (“USERRA” or “the Act”), plaintiff Daniel 

Arturo Garcia-Ascanio (“Garcia”) appeals the district court’s entry of 

judgment, after a jury trial, in favor of defendant Spring Independent School 

District (“Spring ISD”). Garcia asserts that the district court gave the jury 

improper instructions and that the evidence was insufficient to support the 

jury’s verdict. He also contends that he is entitled to front pay and attorney’s 

fees in addition to compensatory damages because he was the “prevailing 

party.” We see no error. The jury instructions were not erroneous, and the 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 17, 2023 

Lyle W. Cayce 

Clerk 

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jury’s verdict was supported by sufficient evidence. Garcia failed to properly 

raise his asserted errors in the district court and therefore did not preserve 

them for appeal, and, in any event, his arguments lack any basis in case law 

and are inconsistent with the text of USERRA. 

I. 

 Spring ISD employed Garcia from August 2013 until July 2019, first 

as a teacher and later, beginning with the 2016 school year, as an Assistant 

Principal at Dueitt Middle School. During this time, Garcia was in the Army 

Reserve and took leave to fulfill his military duties. 

In November 2018, Garcia was called to a meeting with Dueitt 

Principal Eric Mullens and Spring ISD’s Assistant Superintendent for 

Middle Schools, Robert Lundin. Lundin testified that the meeting was to 

discuss Garcia’s professional judgment, complaints about him from parents, 

and other performance issues. Garcia recorded part of the meeting, during 

which Lundin asked Garcia how he would manage his work responsibilities 

with his military responsibilities so that he didn’t “screw over your 

colleagues because of your choices,” meaning his choice to serve in the Army 

Reserve. Lundin sent a memo to Garcia after the meeting that memorialized 

their discussion, including Lundin’s direction to Garcia that he needed to 

have a plan for ensuring that his military duties did not negatively affect his 

colleagues. 

After the meeting, Garcia felt his job was threatened, and he retained 

a lawyer who sent a letter to Spring ISD concerning his USERRA rights. 

Soon after, Garcia was reassigned from being the Assistant Principal 

overseeing eighth grade students to Assistant Principal overseeing seventh 

grade students, but his job responsibilities and duties otherwise remained the 

same. Parents continued to complain about Garcia. Pamela Farinas, who had 

replaced Lundin as Assistant Superintendent of Middle Schools, met with 

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Garcia in March 2019. The meeting did not go well, and Farinas sent Garcia 

a memorandum afterwards about his professionalism. 

Spring ISD eventually opened an investigation into allegations that 

Garcia had behaved improperly regarding student discipline involving illegal 

drugs. After concluding that Garcia had violated school policy and ethical 

standards, Spring ISD placed him on “home duty” in May 2019. That same 

month, the Spring ISD Board voted to propose nonrenewal of his contract at 

the end of the school year. 

Garcia sued, alleging violations of his rights under USERRA. 

Subsequently, the nonrenewal was rescinded and Spring ISD offered Garcia 

a one-year contract for the next school year at a different school. Garcia 

refused to sign the contract in part because he was concerned, based on 

language in the contract, that in doing so he would be admitting to the 

allegations against him—allegations that he denied and was concerned would 

negatively impact his military career. 

Garcia’s lawsuit proceeded to a jury trial. The parties jointly 

submitted proposed jury instructions to the district court. The court and the 

parties then reviewed the joint submission on the record. After the jury 

instructions were complete, the district court sought any objections, and 

neither party objected. 

After deliberations, the jury answered, inter alia, Questions 1 through 

3 affirmatively, finding that Garcia’s military status and his engaging in 

USERRA-protected activity was a motivating factor in his constructive 

discharge. But the jury also answered Questions 4 and 5 affirmatively, finding 

that Spring ISD would have constructively discharged Garcia even if it had 

not taken his military services and protected activity into account. 

Both parties moved for entry of judgment. Garcia then moved for the 

court to disregard the jury’s answers to Questions 4 and 5, arguing for the 

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first time that the jury should not have been asked those questions because 

Spring ISD’s affirmative defense was not available in a constructive 

discharge context. The district court entered judgment for Spring ISD based 

on the jury’s answers to Questions 4 and 5, and Garcia appealed. 

II. 

“Our standard of review for challenges to jury instructions is 

governed by Rule 51 of the Rules of Civil Procedure. Rule 51 requires a party 

to object to jury instructions in order to preserve a claim of error for appeal.” 

Jimenez v. Wood Cnty., 660 F.3d 841, 844 (5th Cir. 2011) (en banc). Such 

objections must be made in a timely fashion, meaning “before the instructions 

and arguments are delivered.” Id. at 845 (quoting Fed. R. Civ. P.

51(b)(2)) (emphasis added); Fed. R. Civ. P. 51(c)(2)(A). Preserved 

objections are reviewed for abuse of discretion. Jimenez, 660 F.3d at 845. 

“Where a proper objection is not made, however, our review of a jury 

instruction challenge is limited to review for plain error.” Id. (citing Fed. 

R. Civ. P. 51(d)(2)). We “appl[y] the plain error standard of [Federal Rule 

of Criminal Procedure] 52(b) in civil cases,” Douglass v. United Servs. Auto. 

Ass’n, 79 F.3d 1415, 1424 (5th Cir. 1996) (en banc), including to unpreserved 

jury instruction challenges. See Highlands Ins. Co. v. Nat’l Union Fire Ins. 

Co., 27 F.3d 1027, 1031–32 (5th Cir. 1994). To satisfy plain-error review, 

Garcia must show that (1) there was an “error,” (2) that was “clear or 

obvious,” (3) that “affected [his] substantial rights,” and (4) that we should 

exercise our discretion to remedy the error because it “seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Puckett v. 

United States, 556 U.S. 129, 135 (2009) (cleaned up). 

 “Whether a party is a ‘prevailing party’ entitled to fees is a legal 

question that the court reviews de novo.” Davis v. Abbott, 781 F.3d 207, 213 

(5th Cir. 2015) (citation omitted). 

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III. 

“USERRA is a federal law that protects employees from being 

discriminated against by their employers because of their military service.” 

McIntosh v. Partridge, 540 F.3d 315, 320 (5th Cir. 2008) (citation omitted). 

“USERRA’s anti-discrimination provision prohibits an employer from 

denying initial employment, reemployment, retention in employment, 

promotion, or any benefit of employment to a person on the basis of 

membership, application for membership, performance of service, 

application for service, or obligation of service.” Rogers v. City of San 

Antonio, 392 F.3d 758, 762 (5th Cir. 2004) (citing 38 U.S.C. § 4311(a)). 

Additionally, “an employer must not retaliate against a person by taking 

adverse employment action against that person because he or she has taken 

an action to enforce a protection afforded under USERRA.” Id. (citing 

§ 4311(b)). Discrimination and retaliation prohibited by USERRA can take 

many forms. Garcia claims that he was constructively discharged by Spring 

ISD in violation of the Act. “If an employer makes service members’ 

employment so intolerable that they feel forced to quit,” USERRA’s “clear 

prohibition against firing service members based on their military service” 

provides for a constructive discharge claim. See Carder v. Cont’l Airlines, 

Inc., 636 F.3d 172, 181–82 (5th Cir. 2011) (collecting cases). 

To establish a USERRA claim, a plaintiff must prove that his or her 

“membership, application for membership, service, application for service, 

or obligation for service in the uniformed services is a motivating factor in the 

employer’s action.” Bradberry v. Jefferson Cnty., 732 F.3d 540, 547 (5th Cir. 

2013) (quoting 38 U.S.C. § 4311(c)(1)). The Act does not define “motivating 

factor,” but “[b]y referring to a ‘motivating factor,’ the statute does not 

textually suggest that military service be the sole factor.” Id. at 545 

(emphasis added). Rather, to trigger liability, military status need only be 

“one of the reasons” for the employer’s prohibited action. Id. (citation 

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omitted). USERRA also provides employers with an affirmative statutory 

defense: An employer is not liable “if it ‘can prove that the action would 

have been taken in the absence of such [military status].’” Id. (quoting 

§ 4311(c)(1)). “[T]he employer has the burden to prove the affirmative 

defense that it would have taken the action anyway.” Id. (citation omitted). 

This same burden-shifting framework applies to retaliation claims. See 38 

U.S.C. § 4311(c)(2). The Act also authorizes a court to award a prevailing 

plaintiff reasonable attorney’s fees. See 38 U.S.C. § 4323(h)(2). 

On appeal, Garcia argues that the “mixed motive defense”—by 

which he means the employer’s affirmative defense that it would have taken 

the same action in the absence of an employee’s military status or protected 

activity—is “inapplicable” in a constructive discharge case because “there 

is an inherent disconnect between [the] mixed-motive defense and 

constructive discharge.” Thus, he asserts that the district court reversibly 

erred by instructing the jury on the defense and claims the jury should never 

have been asked Questions 4 and 5. This argument is meritless. 

Before addressing the merits, we must clarify our standard of review. 

See United States v. Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016) (“It is wellestablished that our court, not the parties, determines the appropriate 

standard of review.”). Garcia asserts that his challenge to the district court’s 

jury instructions presents a “pure question of law” that we should review de 

novo. This is incorrect. Garcia did not properly object to the jury charge in 

the district court, and therefore, we would typically review his claim for plain 

error. Sapia v. Regency Motors of Metairie, Inc., 276 F.3d 747, 753 (5th Cir. 

2002) (“When the party challenging a jury instruction does not properly 

object as required by Rule 51 of the Federal Rules of Civil Procedure, this 

Court applies the plain error standard of review.”) (footnote and citation 

omitted). Further, because Garcia admits in his brief that there is no case law 

supporting his position, he essentially concedes that he cannot satisfy plainCase: 22-20363 Document: 00516823118 Page: 6 Date Filed: 07/17/2023
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7 

error review. See United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) 

(explaining that “lack of binding authority is often dispositive in the plainerror context”); United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010) 

(“An error is not plain unless the error is clear under current law.”) 

(quotation and citation omitted). 

In this case, however, not only did Garcia not properly object, but he 

jointly requested the very jury instructions that he now claims were 

erroneous. Though neither party referenced it, under the invited error 

doctrine, “[a] party cannot complain on appeal of errors which he himself 

induced the district court to commit.” McCaig v. Wells Fargo Bank (Texas), 

N.A., 788 F.3d 463, 476 (5th Cir. 2015) (citation omitted). This doctrine 

applies to jury instructions and bars a claim of error on appeal “at least where 

it does not appear that a substantial miscarriage of justice would result from 

its application.” United States v. Baytank (Houston), Inc., 934 F.2d 599, 606–

07 (5th Cir. 1991). “We will not reverse on the basis of invited error, absent 

manifest injustice.” United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001) 

(quotation and citation omitted); United States v. Lemaire, 712 F.2d 944, 949 

(5th Cir. 1983) (explaining that doctrine does not require reversal “unless the 

error was so patent as to have seriously jeopardized the rights of the 

appellant”). Garcia has not even attempted to show a manifest injustice. 

 Regardless, Garcia’s claim would fail under any standard of review 

because he cannot show an error. According to Garcia, USERRA’s mixedmotive defense is not applicable to a constructive discharge claim because 

“constructive discharge is formally effected by the employee’s decision, the 

employee’s intention, and the employee’s ultimate act,” and thus whether 

an employer had a mixed motive is not relevant because an employer cannot 

“intend” to constructively discharge an employee. This argument 

fundamentally misunderstands the nature of the claim and its focus on the 

actions and motivations of the employer. 

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“A constructive discharge occurs when the employer makes working 

conditions so intolerable that a reasonable employee would feel compelled to 

resign.” McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) 

(citation omitted) (emphasis added). “[I]f the employer deliberately makes an 

employee’s working conditions so intolerable that the employee is forced into 

an involuntary resignation, then the employer has encompassed a constructive 

discharge and is as liable for any illegal conduct involved therein as if it had 

formally discharged the aggrieved employee.” Young v. Sw. Sav. & Loan 

Ass’n, 509 F.2d 140, 144 (5th Cir. 1975) (emphasis added). “The availability 

of such relief [prevents] an employer from circumventing the express 

purposes of USERRA by engaging in some intolerable form of 

harassment[.]” Carder, 636 F.3d at 182 (emphasis added). 

Garcia acknowledges, as he must, that USERRA provides employers 

with an affirmative defense, yet contends, without supporting authority, that 

we should disregard the statute here. But the text of USERRA clearly 

provides employers with a mixed-motive defense. 38 U.S.C. § 4311(c)(1)-

(2). There is no carve-out for constructive discharge claims. Thus, it was 

not error for the district court to instruct the jury on the defense and it was 

proper for the jury to answer Questions 4 and 5. 

 Finally, in a single paragraph of his brief, Garcia argues that even if his 

challenge to the jury instructions fails, he should still prevail because there 

was “no evidence to support the jury’s answer to Question 4 and 5.” First, 

Garcia forfeited this argument by failing to properly raise it in a Rule 50(a) 

motion before the district court.1

 See Flowers v. S. Reg’l Physician Servs. Inc., 

247 F.3d 229, 238 (5th Cir. 2001) (explaining that a party that fails to make a 

_____________________ 

1

 We also have doubts that this issue is adequately briefed on appeal, as Garcia fails 

to recite the standard of review applicable to sufficiency-of-the-evidence challenges or 

provide any citations to the record or supporting authority. See Fed. R. App. P. 28(a)(8). 

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Rule 50(a) motion on an issue “waives both its right to file a renewed postverdict Rule 50(b) motion and also its right to challenge the sufficiency of the 

evidence on that issue on appeal”) (footnote and citation omitted). In any 

event, Garcia’s sufficiency-of-the-evidence claim would fail under any 

standard of review because it is premised on his meritless argument that a 

mixed-motive defense is unavailable in the constructive discharge context, 

and because there was ample evidence to support the jury’s verdict.

IV. 

For the foregoing reasons, Garcia has not shown that he was a 

“prevailing party” entitled to front pay or attorney’s fees. The district court 

correctly entered judgment in favor of Spring ISD. 

AFFIRMED. 

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