IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10166

JOHN MCIVER,

Plaintiff - Appellant/Cross-Appellee

v.

AMERICAN EAGLE AIRLINES, INC.,

Defendant - Appellee/Cross-Appellant

Appeal from the United States District Court

for the Northern District of Texas

No. 4:08-CV-740

Before GARZA, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:

*

John McIver (“McIver”) appeals the district court’s entry of a final

judgment in favor of his former employer, American Eagle Airlines, Inc.

(“American Eagle”) on his age discrimination claims. McIver argues that the

district court erred by: (1) declaring a mistrial and setting aside the first jury

verdict in favor of McIver; (2) misallocating the burden of proof on a statute of

limitations issue; (3) entering summary judgment sua sponte in favor of

American Eagle on McIver’s leave of absence claim without providing sufficient

United States Court of Appeals

Fifth Circuit

F I L E D

February 23, 2011

Lyle W. Cayce

Clerk

 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.

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notice to McIver; and (4) not permitting McIver to introduce certain evidence at

trial. American Eagle filed a cross-appeal, contending that the district court

erred in refusing to grant judgment as a matter of law on American Eagle’s

limitations defense and instead submitting a jury charge on McIver’s unpleaded

theory of equitable estoppel. For the reasons set forth below, we AFFIRM the

judgment in favor of American Eagle. Because we affirm the judgment, we do

not reach American Eagle’s cross-appealed issue.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

McIver began working for American Eagle in 1988 as a pilot. He joined

the training department in 1998, where he trained pilots on the Saab aircraft.

In 2003, James MacAlla (“MacAlla”) hired McIver into the jet training program.

At the time McIver transferred to this department, he was 58 years of age. In

2005, when McIver was 60, he was notified that he was being “displaced” (i.e.,

terminated). MacAlla hand-delivered a letter to McIver on November 17, 2005

notifying him of the decision. McIver later claimed that on this date, MacAlla

told him that the displacement was a “mistake” and that he would “check into

it.” American Eagle disputes that MacAlla ever made this statement.

McIver filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on September 26, 2006, claiming that he was

unlawfully terminated on December 1, 2005 due to his age. On September 3,

2008, McIver filed a new charge of discrimination, adding the allegation that he

had been improperly denied a leave of absence. McIver filed suit in federal

district court on December 3, 2008, alleging that American Eagle violated the

Age Discrimination in Employment Act of 1967 (“ADEA”) by displacing him and

denying him an opportunity to take a leave of absence because of his age.

The judge bifurcated the first trial into two phases. The first phase

determined whether McIver’s claims were barred by the statute of limitations.

The second phase would decide whether American Eagle did, in fact,

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discriminate against McIver on the basis of age. As to the first phase, the

district court concluded that American Eagle was entitled to a statute of

limitations defense because McIver admitted to receiving notice of termination

on November 17, 2005, meaning that the statute of limitations had expired

before he filed his charge with the EEOC. Therefore, McIver bore the burden to

establish a ground for avoiding that defense. McIver argued that because

MacAlla told him that his termination was a “mistake,” he did not know that he

was being displaced until December 1, 2005 (the date he was actually

terminated), so the statute of limitations should be tolled because the defendant

affirmatively misled McIver. MacAlla claimed that he never told McIver that his

termination was a “mistake.” The trial court determined that this factual

dispute was a jury issue with McIver bearing the burden of proof.

The case proceeded to trial for the first time on November 9, 2009. The

jury found in McIver’s favor on the limitations issue during the first phase of the

trial. During the second phase, however, a juror informed the court that he saw

MacAlla, American Eagle’s witness, being coached by a member of the audience,

who was later identified as American Eagle’s general counsel. The judge was

satisfied that this was not the case, but he was nonetheless worried that the jury

was prejudiced against American Eagle. American Eagle moved for a mistrial,

which the court granted. The court also expressed concern with McIver’s

behavior on the witness stand during the first phase of the trial and expressed

significant concern that the jury was prejudiced against American Eagle during

that phase as well. The judge noted that McIver was doing “everything he could

to flirt with the jury, including nodding at the jury, staring at the jury when he

had an opportunity, and in effect communicating with the jury.” Additionally,

the judge commented that McIver’s behavior was “totally unacceptable and was

such an aggravated situation, I was tempted to order a mistrial and start over

again . . . .” Therefore, the judge granted a mistrial as to both phases.

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The second trial began on January 19, 2010. This trial was not bifurcated,

and this time the jury returned a verdict in favor of American Eagle on the

limitations issue, finding that MacAlla did not tell McIver that he was

terminated “by mistake.” The district court entered a final judgment for

American Eagle on January 20, 2010. McIver timely appealed, and American

Eagle timely filed its cross-appeal.

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II. ANALYSIS

A. Did the district court err by declaring a mistrial and setting aside

the first jury verdict in favor of McIver?

“The decision to grant or deny a motion for a new trial is generally within

the sound discretion of the trial court, and reversible only for an abuse of that

discretion.” Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982).

This is because the trial judge had the opportunity to “observe the witnesses and

to consider the evidence in the context of a living trial rather than upon a cold

record . . . .” Id. However, we apply a “broader review to orders granting new

trials than to orders denying them.” Id. “Although the standard of review

remains abuse of discretion, when the district court grants a new trial our

inquiry generally is broader because of our respect for the jury as an institution

and our concern that the party who persuaded the jury should not be stripped

unfairly of a favorable decision.” Nissho-Iwai Co. v. Occidental Crude Sales, Inc.,

848 F.2d 613, 619 (5th Cir. 1988).

A court may grant a motion for a new trial because of actual or implied

juror bias. See United States v. Scott, 854 F.2d 697, 699-700 (5th Cir. 1988). In

Scott, a juror failed to disclose during voir dire that his brother was a law

The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (federal question

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jurisdiction), as the claims asserted in the complaint were based upon alleged violations of a

federal statute, the ADEA, 29 U.S.C. § 621 et seq., as amended. Final judgment was entered

in this matter on January 20, 2010, which disposed of all claims remaining in the litigation. 

This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

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enforcement official. Id. at 698. After the relationship came to light, the district

court concluded that although the juror’s failure to answer the question honestly

was “unreasonable,” a new trial was not warranted because the juror sincerely

believed that he could be impartial. Id. We reversed, concluding that the failure

to disclose the relationship raised a “genuine prospect of actual bias,” and the

district court erred in denying the motion for a new trial. Id. at 700.

In cases where we have found an abuse of discretion, we concluded that

the district judge substituted his or her judgment for that of the jury without a

basis for doing so. See, e.g., Peterson v. Wilson, 141 F.3d 573, 577 (5th Cir.

1998)(judge questioned jurors after the verdict and used that discussion to grant

a new trial); Brun-Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 244 (5th

Cir. 1988)(judge’s conclusion that the verdict was unreasonably low was not

supported by the evidence). In this case, the trial judge instructed the attorneys

during the pretrial conference that he would not “permit any playing to the jury

or currying favor with the jury.” Nonetheless, the record indicates that McIver

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spoke directly to the jury during the first phase of the first trial. During the

second phase, a juror came forward to tell the court that he believed American

Eagle’s witness was being coached by a member of the audience because the

witness “never looked at the jury.” The judge stated that he believed that this

juror and possibly the other jurors were prejudiced against American Eagle

because American Eagle’s witness followed the trial judge’s instruction not to

answer questions directly to the jury.

McIver argues that the judge did not specifically instruct the witnesses not to curry 2

favor with the jury. While acknowledging that he did not mention witnesses specifically in his

pre-trial instructions to the attorneys, the judge stated: “I instructed you and the other lawyer

that there would not be any plays to the jury during this trial and that would certainly include

your client trying to charm the jury by smiling at them and mouthing . . . at the jurors as they

walked back to the jury box.”

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Prior to announcing his decision to set aside the jury’s verdict, the trial

judge made several observations on the record about McIver’s conduct during the

first phase of the trial that raised concerns about prejudice against American

Eagle. For example, the judge observed that “MacAlla’s credibility was,

unfortunately, tainted by the fact that he complied with this court’s instructions

and McIver did not.” In contrast, McIver “was communicating with the jury by

nods of his head and facial expressions as they were coming back to the jury

box.” According to the court, “Mr. McIver was on the stand doing what he could

to infatuate the jury with him, by talking to the jury instead of answering

questions to the lawyers.” The judge noted that “part of the problem is they [the

jurors] saw how Mr. McIver treated them and they are now drawing—they have

established him as the norm, somebody that charms them. And if another

witness doesn’t charm them, there’s something wrong with that other witness,

at least some of the members of the jury—at least one of the members of the jury

has reached that conclusion.”

We recognize that this is an extremely close case and that we must

consider two important interests: McIver’s interest in upholding the jury’s

verdict and American Eagle’s interest in having an unbiased jury. Considering

all the facts, we cannot say that the trial judge abused his discretion in sua

sponte entering a motion for a new trial. The trial judge’s decision was based on

some evidence that the jury was biased against American Eagle because

American Eagle’s witness followed the court’s instructions not to look at the jury

while testifying while McIver did not. We conclude that it was not unreasonable

for the district judge to conclude that the jury bias began during the first phase

of the trial and was enough to invalidate the jury’s verdict. Because we must

resolve doubts about the decision to grant a new trial in favor of the district

judge, see United States v. Baytank, Inc., 934 F.2d 599, 618 (5th Cir. 1991), we

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conclude that the district judge did not abuse his discretion in granting a new

trial.

Additionally, this case does not present facts similar to either Peterson or

Brun-Jacobo, where we found an abuse of discretion. Peterson, 141 F.3d at 577;

Brun-Jacobo, 847 F.2d at 244. In those cases, the trial court substituted its

opinion for that of the jury without any factual basis for doing so. Here, in

contrast, the trial judge recited evidence from which we can infer that juror bias

did, in fact, exist.

B. Did the district court err by submitting an instruction and verdict

form to the jury that allocated the burden of proof on the

equitable tolling issue to McIver?

McIver also argues that the district court incorrectly placed the burden of

proof on him to show that the statute of limitations was tolled. Generally, the

party raising an affirmative defense has the burden of proof on that issue. See

Crescent Towing & Salvage Co. v. M/V ANAX, 40 F.3d 741, 744 (5th Cir. 1994).

To be timely, McIver had to file his EEOC charge within 300 days of the alleged

discriminatory act. See 29 U.S.C. § 626(d). If American Eagle established that

the charge was not filed on time, then McIver had the burden to show that the

limitations period was subject to equitable tolling or equitable estoppel. See

Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992); Rhodes v.

Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991).

The 300-day time period begins to run “when the employee receives notice

of the allegedly discriminatory decision, not when the employment actually

ceases.” Conaway, 955 F.2d at 362. In an ADEA action, this means that “[w]hen

a plaintiff alleges an unlawful discharge, the statute of limitations begins to run

when the plaintiff is notified that his employment is terminated.” Chapman v.

Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989) (per curiam) (emphasis added).

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In his complaint, McIver unequivocally admitted to receiving notice of

termination in November of 2005. The district court and American Eagle both

correctly note that facts admitted in a pleading are binding judicial admissions.

See Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 550

(5th Cir. 2009), cert. denied, 130 S. Ct. 1285 (2010). Additionally, McIver

conceded in the Joint Pretrial Order that he was notified of his displacement via

a hand-delivered letter on November 17, 2005. McIver filed his EEOC charge

on September 26, 2006, 313 days after he received notice that he was being

displaced.

We conclude that because McIver admitted to receiving notice of his

displacement on November 17, 2005, American Eagle conclusively established

that the statute of limitations had run, and the trial judge properly concluded

that McIver bore the burden to show that equitable tolling or equitable estoppel

applied. McIver does not dispute that he received the termination letter on

November 17, 2005, and according to clearly established Fifth Circuit precedent,

this notice triggers the limitations period. Chapman, 886 F.2d at 758. Whether

or not McIver’s version of the November 17, 2005 conversation occurred goes to

whether the limitations period was tolled, not to whether it was triggered. See

id.; Conaway, 955 F.2d at 362. The district court properly placed the burden of

proof in submitting the tolling question to the jury, allowing the jury to

determine whether MacAlla told McIver that there had been a “mistake” about

McIver’s displacement.

McIver also argues that American Eagle’s version of the facts conclusively

establish tolling. MacAlla admitted during the first trial that he told McIver

that it “wasn’t the case” that McIver was “being displaced because he was about

to be 60 and he couldn’t do line checks after he was 60 and [American Eagle was]

getting rid of people over age 60.” McIver argues that MacAlla’s comment

actively misled him about American Eagle’s age discrimination and prevented

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him from asserting his rights. Because McIver did not raise this issue before the

district court, he waived this argument. Horton v. Bank One, N.A., 387 F.3d 426,

435 (5th Cir. 2004) (“Arguments not raised in the district court cannot be

asserted for the first time on appeal.”).

C. Did the district court err by sua sponte entering summary

judgment on McIver’s leave of absence claim without providing

sufficient notice to McIver or by excluding the testimony of

certain witnesses?

The jury found against McIver on the limitations issue in the second trial;

therefore, any alleged errors during the liability phase are harmless.

Consequently, we need not address McIver’s arguments that the district court

erred in excluding evidence relevant to the liability phase of the trial. We also

need not address McIver’s assertion that the district court erred in sua sponte

entering summary judgment on his leave of absence claim for the same reason.

With respect to McIver’s evidentiary objections to testimony excluded

during the limitations phase of the trial, we conclude that McIver waived any

objections by presenting no legal arguments as to why the district court erred.

See Douglas W. ex rel. Jason D.W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210-

11 n.4 (5th Cir. 1998) (declining to address a party’s contention that the trial

court erred in striking several exhibits because the party provided no

explanation of why the district court erred); Cavallini v. State Farm Mut. Auto

Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995) (“[T]he failure to provide any legal

or factual analysis of an issue results in waiver of that issue.”). We therefore

reject McIver’s remaining objections.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment in favor of

American Eagle.

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