# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50635

**Beatrice D. Rodriquez,**

Plaintiff

— Appellant **,**

versus

**Midland County Hospital District,** doing business as **Midland Memorial Hospital,**

Defendant

— Appellee

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 7:18

- CV

- 173

Before **Jolly, Smith,** and **Engelhardt,** Circuit Judges

**. E. Grady Jolly**  **,** Circuit Judge **:** *
Appellant Beatrice Rodriquez was fired after filing a charge of
discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e

- 2 , against her employer, Midland Memori al Hospital (MMH)

. Alt hough Rodriquez’s underlying sex discrimination claim was dismissed at summary

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 27, 2022
Lyle W. Cayce Clerk Case: 21-50635 Document: 00516335319 Page: 1 Date Filed: 05/27/2022No. 21

- 50635

2 judgment , the district court held a jury trial to determine whether the hospital’s decision to fire Rodriquez was retaliation for her Title VII claim.
The jury returned a verdict for MMH. Rodriquez now appeals the district court’s order denying her motion for a new trial, arguing that the court erroneously excluded certain evidence and compounded this error by giving flawed jury instructions. We, however, fi nd no reversible error and
**AFFIRM**

.
I

On June 14 , 2017, Beatrice Rodriquez was going about her duties as a customer service representative for MMH when she was confronted by a coworker, Irma Guerrero , who took issue with Rodriquez’s attire

. Guerrero
asked why Rodriquez was “always dressed like that and always flirting with
all the men. ” Guerrero then pulled on Rodriquez’s cardigan , exposing her shoulder, to show that Rodriquez was “not even wearing a bra; you can see everything.” Rodriquez fu rther alleges that Guerrero repeated this conduct

as Rodriquez tried to walk away, leading her to tell Guerrero to “go back to

your cage.”
Rodriquez reported Guerrero’s actions to her supervisor , who met with Rodriquez five days after the incident. Both R odriquez and Guerrero received written warnings as a result of the incident

. Guerrero received a formal warning, which made her ineligible to receive the next annual pay increase, while Rodriquez received a more informal “supervisory desk note”
for her remark on Guerrero’s “cage.”
Dissatisfied with this outcome, Rodriquez turned to the legal process.

In August of 2017, Rodriquez filed a charge of sex discrimination against
MMH with the Equal Employment Opportunity Commissio n (EEOC) , saying that MMH crea ted a hostile work environment by failing promptly to remedy Guerrero’s misconduct

. Rodriquez also retained an attorney , who Case: 21-50635 Document: 00516335319 Page: 2 Date Filed: 05/27/2022No. 21

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3 sent a demand letter to MMH on February 26, 2018, and another to the hospital ’s outside counsel on March 19

. Together, the letters laid out Rodriquez’s case and offered to settle for $150,000. MMH dec lined.
Rodriquez continued to work for the hospital while this legal jockeying was ongoing. A ccording to MMH , however, performance issues began to
arise. MMH scheduled a meeting for April 23, 2018 , to discuss Rodriquez’s tardiness and complaints about her by coworkers. Shortly after arriving, however, Rodriquez ended the meeting , explaining that she wanted to speak to her attorney before continuing discuss ions

. The meeting was then rescheduled for May 1. The email resetting the meeting , however, forbade Rodriquez from bring ing her attorney and stated that “if you do not attend this meeting, you will be subject to corrective action up to and including
termin ation of employment. ” Rodriquez did not attend and was fired shortly
thereafter

. After the EEOC closed its investigation and issued a right

- to

- sue letter, Rodriquez initiated this action in federal district court. 1 In addition to
her claim that MMH discr iminated on the basis of sex by creating a hostile work environment, Rodriquez claimed that her firing was retaliation for bringing a Title VII claim. The district court granted summary judgment for MMH on Rodriquez’s sex discrimination claim, finding that Guerrero’s conduct was not severe or pervasive enough to create a hostile work
environment. 2 The case proceeded to trial on the retaliation claim.
At trial, MMH contended that it fired Rodriquez because of
insubordination

— that is, her refusa l to attend the May 1 meeting

— while

1 The record does not contain the right

- to

- sue letter and does not disclose what findings, if any, the EEOC made.

2 Rodriquez does not challenge this finding on appeal. Case: 21-50635 Document: 00516335319 Page: 3 Date Filed: 05/27/2022No. 21

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4 Rodriquez argued this was a mere pretext to conceal MMH’s retaliatory
motives. Seeking to show that MMH fired her in part for threatening a lawsuit, R odriquez sought to admit into evidence the demand letters sent to
MMH on February 26 and March 19

. T he district court , however, excluded
the letters as evidence of settlement negotiations prohibited by Federal Rule
of Evidence 408. Rodriquez also contested the court’s jury instru ctions, which provided that the jury should re nder a verdict against MMH if it found that MMH’s “decision to terminate [Rodriquez] was on account of her filing and participating in a charge of discrimination with the EEOC.” Rodriquez argued that this language was too narrow to capture the array of act ivities

— such as threatening litigation

— protected from retaliation under Title VII.
The district court overruled Rodriquez’s objection s

. The jury returned a verdict for MMH. Rodriquez then filed a motion
for a new trial

. She argued that her demand letters were protected activity
under Title VII and that the court’s exclusion of them, together with the jury instructions, erroneously deprived her of the chance to show that MMH
terminated her employment because of her threat of litigation. T he district
court denied the motion. Rodriquez now appeals the denial of her motion for a new trial, again objecting to the exclusion of the demand letters and to the district court’s jury instructions.
The district court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291.

II
We begin by examining the district court’s exclusion of the demand
letters , considering first whether Rodriquez has properly preserved this
issue. Case: 21-50635 Document: 00516335319 Page: 4 Date Filed: 05/27/2022No. 21

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5 A
In order to preserve an error in the exclusio n of evidence, a party must “inform[] the court of [the evidence’s] substance by an offer of proof, unless the substance was apparent from the context.” **Fed. R. Evid.** 103(a)(2). We have interpreted this rule as requiring parties to make clear not only what evidence is being offered, but why that evidence is admissible. Reese v. Mercury Marine Div. of Brunswick Corp. , 793 F.2d 1416, 1421 (5th Cir. 1986) ( “[A] party is required under **Fed. R. Evid.** 103(a)(2) to c arefully articulate every ground for which the evidence is admissible.” ). “ B usy trial courts should not be required to repeat trials, especially civil trials, because the trial judge has excluded evidence for lack of a clear understanding of the
proponent ’ s purpose in offering the evidence.” Id. For this reason, counsel

must inform the court as to “ what counsel intends to show by the evidence and why it should be admitted.” United States v. Akpan , 407 F.3d 360, 374 (5th Cir. 2005) (quoting United States v. Jimenez , 256 F.3d 330, 343 (5th Cir. 2001) ).

B
At trial, Rodriquez’s attorney offered the demand letters in the following exchange:
THE COURT: All right, what else do we have? Anything else, Ms. Britton, before we get the plaintiff on?

MS. BRITTON: Yes, your honor. Okay, so I have P7. These are the demand letters from February 26

— THE COURT: Demand letters are not coming in.
MS. BRITTON: Okay. Case: 21-50635 Document: 00516335319 Page: 5 Date Filed: 05/27/2022No. 21

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6 THE COURT: Okay? Denied. That request is denied. No demand letters are coming in. Any settlement ne gotiations are not coming into this trial. Anything else?
Rodriquez’s counsel made no further objection or argument regarding
admission of the demand letters.
The exchange above is not sufficient to preserve Rodriquez’s objection because counsel d id not s pecify any ground for admission of the
letters. 3 See Reese , 793 F.2d at 1421. Although the district court made a rather firm statement that the demand letters would not be admitted, this did not excuse counsel from pressing further to explain the reasoning behind her request for admission. See FDIC v. Mijalis , 15 F.3d 1314, 1327 (5th Cir. 1994) (“[T]o preserve an argument for appeal, the litigant must press and not merely intimate th e argument during the proceedings before the district court.”). By failing to provide any explanation of the importance of the
documents and the reasons supporting their admission, Rodriquez deprived the district court of an opportunity to correct its purp orted error. Given that the argument was not properly made before the district court, it is not preserved , and we will not review it

. 4 Rodriquez’s challenge to the district
court’s exclusion of the demand letters therefore fails.

3 On the merits of the evidentiary issue , Rodriquez argues that the letters should have been admi tted because they show she engaged in activity protected by Title VII

— threatening litigation

— shortly before her firing. She also points out that, while evidence related to settlement is not admissible “to prove or disprove the validity or amount of a disputed claim,” such evidence may be admitted “for another purpose.” **Fed. R. Evid.**
408. In other words, Rodriquez argues, the letters cannot be used to show the assertions of wrongdoing therein are true, but they can be used to show MMH was threatened with a lawsuit. What ever the merits of this argument, Rodriquez forfeited the issue by failing to properly raise it before the district court.

4 Ordinarily, w here an appellant d oes not adequately object in the district court, we review for plain error

. See, e.g. , United States v. Williams , 847 F.3d 251, 254 (5th Cir. 2017)

. Case: 21-50635 Document: 00516335319 Page: 6 Date Filed: 05/27/2022No. 21

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7 III

We now turn to the district court’s jury instructions. The gravamen of Rodriquez’s arguments on appeal is that the instructions should have more explicitly defined the protected activity alleged to be the cause of Rodriquez’s firing. That is, Rodriquez contends that MMH fired her not just for filing a charge with the EEOC, but for threatening a lawsuit , a theory which Rodriquez asserts she was prevented from adequately presenting by the district court’s jury instructions.
The instructions actually given asked whether MMH’ s “decision to terminate [Rodriquez] was on account of her filing and participating in a charge of discrimination with the EEOC.” 5 Rodriquez does not make clear

For an unpreserved challenge to the exclusion of evidence, however, we have repeatedly held that we will not review any claim of error at all. United States v. Winkle , 587 F.2d 705, 710 (5th Cir. 1979) ; United States v. Clements , 73 F.3d 1330, 1336 (5th Cir. 1996). T his court has occasionally deviated from this rule by review ing such a challenge for plain error. See Reese , 793 F.2d at 1421 ; United States v. Maes , 961 F.3d 366, 372 (5th Cir. 2020) . But a later panel generally “may not overrule a prior panel decision,” Thompson v. Dall. City Att’y’s Office , 913 F.3d 464, 467 (5th Cir. 2019), and as such, we are bound by our earlier decision in Winkle that an unpreserved objection to the exclusion of eviden ce receives no review. See Winkle , 587 F.2d at 710.

5 The pertinent portion of the instructions reads in full: To prove unlawful retaliation, Plaintiff Beatrice Rodriquez must prove by a preponderance of the evidence that: Defendant Midland Memorial Hospital’s decision to terminate Plaintiff Beatrice Rodriquez was on account of her filing and participating in a ch arge of discrimination with the EEOC. To find for Plaintiff Beatrice Rodriquez, you need not find that the only reason for Defendant Midland Memorial Hospital’s decision was Plaintiff Beatrice Rodriquez’s filing and participating in a charge of discriminat ion with the EEOC. But you must find that Defendant Midland Memorial Hospital’s decision to terminate Plaintiff Beatrice Rodriquez would not have occurred in the absence of

— but for

— her filing and participating in a charge of discrimination with the EEOC. Case: 21-50635 Document: 00516335319 Page: 7 Date Filed: 05/27/2022No. 21

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8 on appeal precisely what language she believes the district court should have used. She argued below, however, that the jury instructions should refer to “fil[ing] a charge of discrimination with the EEOC and participat[ing] in the EEOC’s investigation” or should have included a specific list of activities protected under Title VII, including that Rodriquez “had her lawyer reach out to [MMH] to address her legal claims.” Because Rodriquez repeatedly object ed to the instructions given , she has preserved her challenge to the jury charge

.
A
We review a preserved challenge to jury instructions for abuse of
discretion. Abraham v. Alpha Chi Omega , 708 F.3d 614, 620 (5th Cir. 2013). A district court has “broad discretion” to fashion an appropriate jury charge and is “under no obligation to couch the charge in terms requested by
counsel.” Davis v. Avondale I ndus., Inc. , 975 F.2d 169, 174 (5th Cir. 1992)

. Instead , the district court need only “correctly and adequately instruct the jury as to the law to be followed in deciding the issues.” Alexander v. Conveyors & Dumpers, Inc. , 731 F. 2 d 1221, 1227 (5th Cir. 1984) (per curiam). In general, we will overturn a jury’s verdict only when “the charge as a whole creates substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Abraham , 708 F.3d at 620 ( quoting Price v. Rosiek
Constr. Co. , 509 F.3d 704, 708 (5th Cir. 2007)).

B

We conclude that t he district court did not abuse its discretion in instructing the jury. The charge used

— although not the only permissible set

S imilarly, the jury verdict form asked “[d]o you find that Plaintiff Beatrice Rodriquez would not have been terminated but for her filing and participating in a charge of discrimination with the EEOC?” Case: 21-50635 Document: 00516335319 Page: 8 Date Filed: 05/27/2022No. 21

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9 of instruction s the district court could have given

— was a correct statement of the law as applied to the facts of the case

. See Julian v. City of Hous. , 314 F.3d 721, 727 (5th Cir. 2002) (“[I]f the charge correctly states the substance of the law, we will not reverse.”). We agree with the district court that the phrase “fil[e] and participat[e] in a charge of discrimination” is sufficiently capacious to include the threat of a lawsuit pertaining to an ongoing EEOC investigation. Indeed, the similarity of this language to one version of Rodriquez’s own proposed instructions

— that Rodriquez “filed a charge of discrimination with the EEOC and participated in the EEOC’s investigation ”

— makes clear that the district court’s choice of words adequately encompassed Rodriquez’s theor y of the case. Nor was the district court required to adopt Rodriquez’s alternative proposal of a lengthy and
cumbersome list individually mentioning “complaining internally, participating in an EEOC investigation, making an EEOC charge, hiring an attorney, [and] threatening a lawsuit. ”
Moreover, the district court indicated at multiple points during the
trial that it would allow Rodriquez free rein in argu ing that her actions constituted “participating in” a charge of discrimination

. When Rodriquez requested that the instructions reference “fil[ing] a charge and participat[ing] in an EEOC investigation,” the district court responded that “you can argue all that to the jury” under the ex tant language. And the court later reassured Rodriquez that she could argue “whatever .

. . you want to argue that are reasonable inferences from the charge.” Furthermore, there is no indication that Rodriquez was preclud ed from eliciting testimony showing that she threatened litigation. The district court’s permissive approach
suggests that Rodriquez failed to convince the jury she was fired for threatening a lawsuit not because she was hampered by unduly restrictive jury instructions, but because she failed to adduce sufficient persuasive
evidence. Case: 21-50635 Document: 00516335319 Page: 9 Date Filed: 05/27/2022No. 21

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10 Even if more specific language could have been helpful to Rodriquez, parties are entitled not to their “exact choice of verbiage in a jury
instruction” but to a correct statement of the issues and law. United States v. Montgomery , 747 F.3d 303, 310 (5th Cir. 2014). Rodriquez received her due.
We entertain no “substantial and ineradicable doubt” th at the jury was misguided

. Davis , 975 F.2d at 175. We therefore find that there was no abuse of discretion in the district court’s jury instructions.

IV
To sum up, we have held in this appeal that we will not review the
exclusion of the demand letters se nt by Rodriquez’s counsel because Rodriquez failed to properly object to the district court’s evidentiary ruling

. We have further held that the district court did not err in instructing the jury

. Because we find no reversible error, the judgment of the dis trict court is

**AFFIRMED.** Case: 21-50635 Document: 00516335319 Page: 10 Date Filed: 05/27/2022