* 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this opinion should not be published and is not precedent except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

February 28, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

06-40989

Summary Calendar

LORA M. BAKI,

Plaintiff-Appellee,

v.

BIGELOW MANAGEMENT, INC.; BUDGET SUITES OF AMERICA; BIGELOW

COLORADO LIMITED LIABILITY COMPANY BUDGET SUITES OF AMERICA,

INC., doing business as Budget Suites of America

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Texas, Sherman

4:04-CV-178

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Lora Baki was employed as a customer service representative by

the defendants (hereinafter referred to collectively as “Bigelow”)

for about three months. In her letter of resignation, she

complained that she had been the victim of sexual harassment by one

co-worker and one customer. Bigelow investigated and found her
2

claims meritless. Ms. Baki filed suit in district court alleging,

inter alia, sexual harassment and constructive discharge. The jury

returned a verdict in her favor and awarded her damages in the

amount of $10,820. 

On appeal, Bigelow raises only one issue. It argues that the

district court abused its discretion by excluding the testimony of

one witness, Howard Cooper, and that this exclusion substantially

prejudiced Bigelow’s defense. Ms. Baki, who was married during the

events giving rise to this litigation, had been having an

extramarital affair with Mr. Cooper. The defense wanted to

introduce his testimony to rebut Ms. Baki’s account of her mental

anguish. Bigelow intended to show that, during the time when she

claimed to be enduring harassment at work, she continued to see Mr.

Cooper on a regular schedule, without interruption, and

demonstrated no signs of anguish. Bigelow also believed Mr. Cooper

could testify as to other stressors in Ms. Baki’s life that might

have contributed to her suffering, apart from the harassment at

work. Finally, Bigelow argued that Mr. Cooper’s testimony would

point out certain inaccuracies and inconsistencies in Ms. Baki’s

testimony, which would negatively impact her credibility.

Ms. Baki moved to strike Mr. Cooper’s live testimony. After

hearing argument on the matter, the district judge concluded that

the defense could introduce the evidence it needed through its

other witnesses, particularly the various doctors they intended to
3

call at trial. The judge found that these defense witnesses could

testify to the other stressors in Ms. Baki’s life and to consistent

patterns in her behavior, including the affair. The judge felt,

however, that for Mr. Cooper to take the stand and testify to the

affair and other matters would be “unfairly prejudicial” to the

plaintiff. The court issued a written order specifically allowing

the other defense witnesses to testify about the plaintiff’s affair

with Cooper and how that might have impacted Baki’s mental state,

but stated that Cooper himself would not be allowed to take the

stand.

We review a district court’s evidentiary rulings for abuse of

discretion. E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089,

1092–93 (5th Cir. 1994) (citations omitted). We will not reverse

unless the district court’s ruling results in substantial prejudice

to the complaining party. Id. at 1093.

It seems clear to us that the district court considered this

issue at length and was well within its discretion to strike Mr.

Cooper’s live testimony. However, even if we were to agree with

the defendant that Cooper’s testimony should have been allowed, the

error was clearly harmless. The jurors were presented with ample

evidence of everything to which Cooper would have testified. They

heard from multiple witnesses about the other stressors in Ms.

Baki’s life and the degree to which her normal routine was or was

not interrupted. They even heard evidence of the extramarital
4

affair itself. In short, Mr. Cooper could not have told the jury

anything substantive that they did not already know. We are also

unimpressed by the defense’s argument that Cooper would have

undermined Ms. Baki’s credibility by pointing out inconsistencies

in her version of events. The purported inconsistencies are

speculative at best, because the issues on which he might have

contradicted her, such as the details of their relationship, did

not and likely would not have come up at trial. Moreover, if the

inconsistencies did exist, they were quite minor and had no bearing

on the basis of the lawsuit. We are satisfied, therefore, that

even if it was error to exclude Cooper’s testimony, it surely “did

not influence the jury or had but a very slight effect on its

verdict.” Haun v. Ideal Industries, Inc., 81 F.3d 541, 547 (5th

Cir. 1996) (internal quotations omitted). We see no reason to

overturn the jury’s verdict or damage award based on these

speculative or insubstantial arguments. Any error was harmless.

For the reasons stated, the district court’s ruling is

AFFIRMED.