# 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 Un iformed Services Employment and Reemployment Rights Act (“USERRA” or “the Act”), plaintiff Daniel Arturo Garcia-Ascanio (“Garcia”) ap peals the district court’s entry of judgment, after a jury trial, in favor of defendant Spring Independent School District (“Spring ISD”). Garcia assert s that the district court gave the jury improper instructions and that the evid ence was insufficient to support the jury’s verdict. He also co ntends 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 in structions were not erroneous, and the United States Court of Appeals Fifth Circuit 

### FILED July 17, 2023 Lyle W. Cayce Clerk Case: 22-20363 Document: 00516823118 Page: 1 Date Filed: 07/17/2023No. 22-20363

2 jury’s verdict was supported by sufficient evidence. Garcia failed to properly raise his asserted errors in the distri ct 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 Au gust 2013 until July 2019, first as a teacher and later, beginning with the 2016 school year, as an Assistant Principal at Dueitt Middle School. Duri ng 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. Lund in testified that the meeting was to discuss Garcia’s professio nal 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 th at he didn’t “screw over your colleagues because of your ch oices,” 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 dire ction to Garcia that he needed to have a plan for ensuring th at 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 A ssistant Principal overseeing seventh grade students, but his job responsibilit ies and duties otherwise remained the same. Parents continued to complain ab out Garcia. Pamela Farinas, who had replaced Lundin as Assistant Superi ntendent of Middle Schools, met with Case: 22-20363 Document: 00516823118 Page: 2 Date Filed: 07/17/2023No. 22-20363

3 Garcia in March 2019. The meeting did not go well, and Farinas sent Garcia a memorandum afterwards ab out his professionalism. Spring ISD eventually op ened an investigation into allegations that Garcia had behaved improp erly regarding student di scipline 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 resc inded 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 do ing so he would be admitting to the allegations against him—allegations thathe denied and was concerned would negatively impact his military career. Garcia’s lawsuit proceeded to a ju ry trial. The parties jointly submitted proposed jury instructions to the district court. The court and the parties then reviewed the joint submi ssion on the record. After the jury instructions were complete, the distri ct 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 moti vating factor in his constructive discharge. But the jury also answered Questions 4 and 5 affirmatively, finding that Spring ISD would have constructive ly discharged Garcia even if it had not taken his military services and pr otected activity into account. Both parties moved for entry of judg ment. Garcia then moved for the court to disregard the jury’s answers to Questions 4 and 5, arguing for the Case: 22-20363 Document: 00516823118 Page: 3 Date Filed: 07/17/2023No. 22-20363

4 first time that the jury should not ha ve been asked those questions because Spring ISD’s affirmative defense wa s not available in a constructive discharge context. The district cour t entered judgment for Spring ISD based on the jury’s answers to Question s 4 and 5, and Garcia appealed.

II.

“Our standard of review for cha llenges to jury instructions is governed by Rule 51 of the Rules of Civi l 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 ma de, 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 plai n 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. 1 994). To satisfy plain-error review, Garcia must show that (1) there was an “error,” (2) that was “clear or obvious,” (3) that “affected [his] substa ntial rights,” and (4) that we should exercise our discretion to remedy the error because it “seriously affects the fairness, integrity or public repu tation of judicial proceedings.” Puckett v. United States , 556 U.S. 129, 135 (2009) (cleaned up). “Whether a party is a ‘prevailing pa rty’ 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). Case: 22-20363 Document: 00516823118 Page: 4 Date Filed: 07/17/2023No. 22-20363

5 III. “USERRA is a federal law that protects employees from being discriminated against by their employer s because of their military service.” McIntosh v. Partridge , 540 F.3d 315, 320 (5th Cir. 2008) (citation omitted). “USERRA’s anti-discrimination provis ion prohibits an employer from denying initial employment, reemployment, retention in employment, promotion, or any benefit of employ ment to a person on the basis of membership, application for member ship, performance of service, application for service, orobligation 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 re taliate against a person by taking adverse employment action against that person because he or she has taken an action to enforce a protec tion afforded under USERRA.” Id. (citing § 4311(b)). Discrimination and retalia tion prohibited by USERRA can take many forms. Garcia claims that he wa s constructively discharged by Spring ISD in violation of the Act. “If an employer makes service members’ employment so intolerable that they f eel forced to quit,” USERRA’s “clear prohibition against firing service memb ers 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 plai ntiff 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 lia bility, military status need only be “one of the reasons” for the employer’s prohibited action. Id. (citation Case: 22-20363 Document: 00516823118 Page: 5 Date Filed: 07/17/2023No. 22-20363

6 omitted). USERRA also provides emplo yers with an affirmative statutory defense: An employer is not liable “if it ‘can prove that the action would have been taken in the absenc e of such [military status].’” Id. (quoting § 4311(c)(1)). “[T]he employer has th e 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). Th e Act also authorizes a co urt 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 ab sence of an employee’s m ilitary status or protected activity—is “inapplicable” in a construc tive discharge case because “there is an inherent disconnect between [the] mixed-motive defense and constructive discharge.” Thus, he asse rts that the district court reversibly erred by instructing the jury on the de fense 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 th at his challenge to the district court’s jury instructions presents a “pure ques tion of law” that we should review de

novo . This is incorrect. Garcia did not pr operly object to the jury charge in the district court, and therefore, we wo uld 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: 07/17/2023No. 22-20363

7 error review. See United States v. Gonzalez , 792 F.3d 534, 538 (5th Cir. 2015) (explaining that “lack of binding author ity 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 inst ructions that he now claims were erroneous. Though neither party re ferenced 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 revers e 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 seri ously jeopardized the rights of the appellant”). Garcia has not even att empted 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 effe cted 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 discha rge an employee. This argument fundamentally misunderstands the nature of the claim and its focus on the actions and motivations of the employer. Case: 22-20363 Document: 00516823118 Page: 7 Date Filed: 07/17/2023No. 22-20363

8 “A constructive discharge occurs when the employer makes working conditions so intolerable that a reason able 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 conditio ns so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable forany illegal conduct involv ed 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 conten ds, 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 discha rge claims. Thus, it was not error for the district court to instru ct the jury on the defense and it was proper for the jury to an swer Questions 4 and 5. Finally, in a single paragraph of his br ief, 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) (expla ining that a party that fails to make a

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1 We also have doubts that this issue is ad equately briefed on appeal, as Garcia fails to recite the standard of review applicable to sufficiency-o f-the-evidence challenges or provide any citations to the reco rd or supporting authority. See Fed. R. App. P. 28(a)(8). Case: 22-20363 Document: 00516823118 Page: 8 Date Filed: 07/17/2023No. 22-20363

9 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 pr emised 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. Case: 22-20363 Document: 00516823118 Page: 9 Date Filed: 07/17/2023