IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20027

ARLEEN DELARONDE, 

Plaintiff - Appellee

v.

LEGEND CLASSIC HOMES, LIMITED, 

Defendant - Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-1578

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Legend Classic Homes, Ltd. (“Legend”) appealed

the district court’s denial of its Rule 50(b) motion for judgment as a matter of 

law and the refusal to instruct the jury regarding the meaning of “similarly 

situated” in a Title VII employment discrimination case. For the following 

reasons, we AFFIRM.

 

* 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

January 18, 2018

Lyle W. Cayce

Clerk

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I. Background

Plaintiff-Appellee Arleen Delaronde (“Delaronde”) worked as a sales 

associate for Legend, a home builder in the Houston area, from May 2010 to 

April 2013. The sales communities Legend assigns its associates vary from

higher-priced to lower-priced homes, with different offerings and target 

markets. The salaries of Legend’s sales associates are commission-based, set 

at two percent of every home sale. Under its at-will employment policy, Legend 

retains the right to “demote, transfer, change job duties, and change 

compensation at any time with or without notice and with or without cause in 

its sole discretion.” 

Delaronde was initially placed at the Legends Trace community in North 

Harris County (“Trace”), where she was trained by sales manager Brett Briggs 

(“Briggs”). In March 2011, Legend hired Maria Dorman (“Dorman”) and placed 

her at Trace with Delaronde. Delaronde and Dorman entered into a 

partnership agreement whereby they shared work and commissions from all 

sales made at Trace. In its initial EEOC response, authored by Vice President 

of Sales and Marketing, Mark Tollefsrud (“Tollefsrud”), Legend acknowledged

it was not comfortable with that partnership. . 

Although Trace was a challenged neighborhood at the time Delaronde 

started working, in 2011 Delaronde had doubled her income and by 2012 the 

community was “pretty much booming.” Delaronde became familiar with the 

market and developed connections with realtor contacts. Delaronde had over 

$3 million in home sales in 2011, and in 2012 the Trace property realized over 

$9 million in net sales. 

On November 20, 2012, Legend hired Marvin Bullard (“Bullard”) as a 

sales associate and assigned him to complete training with Briggs at the 

corporate offices. On December 7, 2012, Briggs told Delaronde she was being 

transferred from Trace to the Deerbrook Estates community (“Deerbrook”) to 

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assist in training a newly-promoted sales counselor. Delaronde believed the 

assignment was temporary and that she would eventually return to Trace, as 

Briggs told her Deerbrook would be a one-person community once training was 

complete. Tollefsrud and Briggs assigned Bullard to take Delaronde’s place at 

Trace, where Dorman was assigned to provide Bullard additional training. 

The home prices in the Deerbrook community were the lowest of any 

Legend property. In comparison to Trace’s 2013 sales volume of over 

$13 million, Deerbrook’s total sales were just under $3 million. Delaronde 

struggled to make sales and sold only one home that made it to a closing. 

Delaronde was not provided any additional compensation for training. 

Delaronde was paid $2,000 a month for three months to compensate her 

for the transfer and continued to receive residual commission payments for her 

sales at Trace. After Delaronde had trouble making sales for the three months, 

she asked Legend for an extension of her salary for one pay period. Despite 

the sales difficulties, from the time she transferred to Deerbrook until her 

resignation four months later, Delaronde made approximately $42,000-

$43,000, which mostly consisted of residual commission payments. 

Delaronde learned her transfer was permanent and realized she would 

not be returning to Trace in January 2013, when Briggs offered Delaronde a 

reassignment to the Sydney Harbour community to train sales associates 

there. Delaronde turned down the offer and resigned in April 2013. 

Five months after her resignation, Delaronde filed an EEOC charge, 

claiming sex discrimination and constructive discharge. EEOC failed to act on 

the charge and sent Delaronde a right to sue letter. Her ensuing Title VII case 

was tried, resulting in a jury verdict in favor of Delaronde. The jury awarded 

Delaronde $150,000 in compensatory damages and $150,000 in punitive 

damages. The district court vacated the award of punitive damages, but

upheld the compensatory damages award and denied Legend’s Rule 50(b) 

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Motion for Judgment as a Matter of Law. Legend timely appealed the final 

judgment.

II. Standard of Review

In reviewing a district court’s denial of a post-verdict motion for 

judgment as a matter of law under Rule 50(b), we “use the same standard to 

review the verdict that the district court used in first passing on the motion.” 

Nobach v. Woodland Village Nursing Ctr., Inc., 799 F.3d 374, 377 (5th Cir. 

2015) (internal quotation marks, citation, and alteration omitted). “[T]he legal 

standard is whether a ‘reasonable jury would not have a legally sufficient 

evidentiary basis to find for the party on that issue.’” Id. at 377-78 (quoting

Fed. R. Civ. P. 50(a)(1)). Granting judgment as a matter of law is appropriate 

only where the facts and inferences point “so strongly and overwhelmingly in 

the movant’s favor that reasonable jurors could not reach a contrary 

conclusion.” Omnitech Int’l., Inc. v. Clorox Co., 11 F.3d 1316, 1323 (5th Cir. 

1994). This court reviews the denial of a motion for judgment as a matter of 

law in an “especially deferential” manner. Flowers v. S. Reg’l Physician Svcs., 

Inc., 247 F.3d 229, 235 (5th Cir. 2001)(internal quotation and citation 

omitted).

A district court’s refusal to provide a requested jury instruction is 

reviewed for abuse of discretion. United States v. McClatchy, 249 F.3d 348, 

356 (5th Cir. 2001). 

III. Analysis 

a. Sex Discrimination 

Legend argues it is entitled to judgment as a matter of law under 

Rule 50(b) because (1) Delaronde failed to prove that Legend’s articulated 

reason for her transfer was a pretext for discrimination, and (2) Delaronde did 

not offer any legally sufficient evidence to show her transfer was based on her 

sex. 

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When a Title VII case has been tried on the merits, “the adequacy of a 

party’s showing at any particular stage of the McDonnell Douglas ritual is 

unimportant,” and this court focuses on “whether the record contains evidence 

upon which a reasonable trier of fact could have concluded as the jury did.” 

Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993); see also 

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S. Ct. 2742, 2749 (1993) 

(noting the McDonnell Douglas framework is “no longer relevant” once the 

defendant has carried its burden of production). Here, there was enough 

evidence presented at trial – albeit largely circumstantial – from which the 

jury could conclude Legend engaged in illegal discrimination when it 

transferred Delaronde. 

To begin, trial testimony established Delaronde’s sales record was good, 

she was successful and had real estate experience. Further, the transfer to 

Deerbrook was adverse to her actual and potential earnings. Briggs testified 

Delaronde would never have made the same amount of money at Deerbrook as

she did at Trace, and Delaronde herself explained the challenging clientele and 

credit issues in the Deerbrook area, which had the lowest home prices in the 

company and made sales more difficult. 

Legend homes in on its argument that she did not present legally 

sufficient evidence that she was treated differently from similarly situated 

men in nearly identical circumstances. In a Title VII case, a plaintiff may show 

she was treated less favorably than other employees who are “similarly 

situated” to the plaintiff. Lee v. Kansas City So. Ry. Co., 574 F.3d 253, 259 (5th 

Cir. 2009). This court has required plaintiffs proffering fellow employees as 

comparators to demonstrate the actions at issue were taken “under nearly 

identical circumstances.” Id. at 260 (internal quotation marks and citation 

omitted). Nevertheless, the inquiry as to which employees are considered 

“similarly situated” is “case-specific” and requires an analysis of “the full 

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variety of factors that an objectively reasonable...decisionmaker would have 

found relevant in making the challenged decision.” Lindquist v. City of 

Pasadena, 669 F.3d 225, 234 (5th Cir. 2012) (quoting Griffin Indus., Inc. v. 

Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007)).

Our review of the record persuades us that the record contains sufficient

evidence for a reasonable trier of fact to find Bullard was a similarly situated 

comparator who was treated more favorably than Delaronde. Delaronde’s and 

Bullard’s job titles, responsibilities, and equivalent experience were close 

enough for a reasonable factfinder to view Bullard as being “similarly 

situated.” Further, the circumstances and outcomes surrounding Delaronde’s 

and Bullard’s transfers were sufficient for a reasonable factfinder to find 

Bullard was treated more favorably than Delaronde. 

Legend’s attempts to explain how it treated the plaintiff were 

inconsistent and could be viewed by a reasonable juror as pretextual for a 

discriminatory purpose. In its EEOC response and at trial, Legend variously 

claimed the transfer was a staffing change, a promotion, a way to dismantle 

the partnership between Delaronde and Dorman, or for training needs. Since 

pretext can be established by showing the “proffered explanation is false or 

unworthy of credence,” Laxton, 333 F.3d at 578 (internal quotation marks and 

citation omitted), Legend’s shifting reasons for transferring Delaronde furnish 

additional support for the verdict. 

It is not this court’s role simply to disagree with a jury verdict. Instead, 

we must uphold the verdict unless strong grounds for granting judgment as a 

matter of law existed. Because the record contains sufficient evidence for a 

reasonable jury to have found sex discrimination, the district court did not err 

in refusing to set aside the verdict. 

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b. Constructive Discharge 

We do not need to reach the issue of whether Delaronde was 

constructively discharged. Both parties recognized during oral argument that 

the constructive discharge issue is not a freestanding claim for relief; it is 

merely an alternative allegation of an adverse employment action that 

constituted illegal sex discrimination. 

Because the jury’s award of compensatory damages was based on 

Delaronde’s wages and benefits from April 1, 2013 to November 18, 2014, both 

her discrimination and constructive discharge claims were considered in 

arriving at the compensatory damage award amount. By affirming the finding 

that Delaronde’s transfer constituted illegal sex discrimination, we have a 

sufficient basis to affirm the jury’s award of $150,000 in compensatory 

damages—regardless of whether we affirm or reverse the constructive 

discharge finding. In addition, neither party sought a remand for a new trial 

on damages, so we are not inclined to order one.

c. The Jury Instruction

Legend alternatively asserts this court should grant a new trial because 

the district court erred in not charging the jury with Legend’s proposed 

instruction on the definition of “similarly situated,” and the charge failed

adequately to describe the burden necessary to prevail on a claim of sex

discrimination. Legend further contends because the district court refused its 

proposed instruction, the jury was not properly instructed or guided in its 

deliberations. During deliberations, the jury asked: “Does similarly qualified 

person mean: lesser or equally situated or only equally situated? Could we have 

more clarification on this item?” The district court’s response was that the jury 

had “received all appropriate instructions” and the jury was to return to its 

deliberations. 

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Given a district court’s “substantial latitude in crafting jury 

instructions,” the refusal to give a [requested] jury instruction will only 

constitute reversible error “‘if the instruction (1) was a substantially correct 

statement of law, (2) was not substantially covered in the charge as a whole, 

and (3) concerned an important point in the trial such that the failure to 

instruct the jury on the issue seriously impaired the [party’s] ability to present 

a given [claim].’” Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 

578 (5th Cir. 2004) (quoting McClatchy, 249 F.3d at 356). A district court does 

not abuse its discretion if it refuses to grant a new trial on the ground that “a 

jury instruction, although correct, was not as clear as it could have been.” 

Seibert v. Jackson Cnty., 851 F.3d 430, 439 (5th Cir. 2017).

The jury instruction Legend proposed as to the meaning of “similarly 

situated” was the following: 

“Similarly situated” employees are employees who are treated 

more favorably in “nearly identical” circumstances. Similarly 

situated individuals must be “nearly identical” and must fall 

outside the Plaintiff’s protective class—i.e., they must be male. 

Significantly, individuals must share the same capabilities to be 

considered “similarly situated.” Put another way, “[e]mployees 

with different capabilities are not considered to be nearly 

identical.” Consistent with that principle, individuals who are 

truly “similarly situated” will have the same level of experience 

and seniority. Proper comparators must also be 

contemporaneously employed at the same location as the plaintiff. 

As previously discussed, “similarly situated” comparator employees in 

the Title VII discrimination context means employees who are “nearly 

identical.” Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F. 3d 507, 514 

(5th Cir. 2001). Legend’s proposed instruction, while based on Fifth Circuit 

precedent, ignores the “case-specific” inquiry the Fifth Circuit has mandated, 

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because “[w]hat is relevant in one case might not be relevant in another.”

Lindquist, 669 F.3d at 234.

The jury was instructed: “To prove unlawful discrimination, Plaintiff 

must prove by a preponderance of the evidence that: 1. Defendant transferred 

Plaintiff and she was replaced with a similarly qualified person who was not a 

member of the protected class or that similarly situated employees outside the 

protected class were treated more favorably.” The instruction did not contain 

an erroneous suggestion, but substantially covered Delaronde’s burden of proof 

in the charge as a whole. In not getting into the weeds of the meaning of 

“substantially similar,” the instruction did not misstate the law.

Furthermore, when a jury is properly instructed regarding the 

controlling law and counsel is able to present the jury with inferences it was 

permitted to make from the evidence, this court cannot conclude a party was 

seriously impaired in presenting its claim. See Kanida, 363 F.3d at 579-80

(finding no reversible error where the district court’s instructions properly 

stated the governing law and the party was able to present an argument based 

on the court’s instructions). Legend gave closing arguments after the district 

court read the charges to the jury and was not only able, but did in fact tailor 

its argument to fit the instructions given.

Because the district court properly instructed the jury on the controlling 

law regarding Delaronde’s burden of proof and Legend was not seriously 

impaired in its ability to present its arguments, the district court did not err 

in refusing Legend’s proposed instruction. 

IV. Conclusion

For the foregoing reasons, the JUDGMENT IS AFFIRMED.

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