United States Court of Appeals

for 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 Memorial Hospital (MMH). Although 

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opinion should not be published and is not precedent except under the limited 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: 05/27/2022
No. 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, find 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 further 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 Rodriquez 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 Commission (EEOC), 

saying that MMH created 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: 05/27/2022
No. 21-50635

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 declined.

Rodriquez continued to work for the hospital while this legal jockeying

was ongoing. According 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 discussions. The meeting was then 

rescheduled for May 1. The email resetting the meeting, however, forbade

Rodriquez from bringing her attorney and stated that “if you do not attend 

this meeting, you will be subject to corrective action up to and including 

termination 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 discriminated 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 refusal 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: 05/27/2022
No. 21-50635

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, Rodriquez sought to admit into evidence the demand letters sent to 

MMH on February 26 and March 19. The 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 instructions, 

which provided that the jury should render 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 activities—

such as threatening litigation—protected from retaliation under Title VII.

The district court overruled Rodriquez’s objections.

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. The 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: 05/27/2022
No. 21-50635

5

A

In order to preserve an error in the exclusion 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 carefully 

articulate every ground for which the evidence is admissible.”). “Busy 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: 05/27/2022
No. 21-50635

6

THE COURT: Okay? Denied. That request is denied. No

demand letters are coming in. Any settlement negotiations 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 did not specify 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 the 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 purported 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 admitted 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. Whatever the merits of this argument, Rodriquez forfeited the issue by failing to 

properly raise it before the district court. 

4 Ordinarily, where an appellant does 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: 05/27/2022
No. 21-50635

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). This court 

has occasionally deviated from this rule by reviewing 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 evidence 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 charge 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 discrimination 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: 05/27/2022
No. 21-50635

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

objected 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 Indus., 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.2d 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 the district court did not abuse its discretion in

instructing the jury. The charge used—although not the only permissible set 

Similarly, 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: 05/27/2022
No. 21-50635

9

of instructions 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 theory 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 arguing 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 extant 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 precluded 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: 05/27/2022
No. 21-50635

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” that 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 sent 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 district court is

AFFIRMED.

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