IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30205

TIM LAWSON,

Plaintiff-Appellant,

v.

GRAPHIC PACKAGING INTERNATIONAL INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 3:12-CV-56

Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Tim Lawson filed suit against his former employer,

Defendant-Appellee, Graphic Packaging International Incorporated (“GPI”),

alleging, inter alia, that GPI terminated him because of his age, in violation of

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(l).

Lawson’s ADEA discrimination claim went to trial, and the jury returned a 

verdict in favor of GPI. Lawson appealed, arguing that the district court 

abused its discretion in evidentiary rulings it made and jury instructions it 

provided. 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

December 13, 2013

Lyle W. Cayce

Clerk

 

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FACTUAL BACKGROUND

In 2008, GPI hired Lawson to serve as a human resources manager at 

its West Monroe, Louisiana paper mill. Lawson reported directly to Tony 

Hobson, the West Monroe facility’s mill manager. In June 2010, Lawson 

underwent surgery to remove melanoma from his back. Following the 

surgery, Lawson’s relationship with Hobson began to deteriorate. Lawson 

testified that Hobson told him twice: “I don’t know that you can give me 120 

percent like you have before. At your age, and with your family this far away,

I—I don’t know that you’re not going to leave us and go back and visit—spend 

the rest of your time with them.” Hobson, at trial, denied making the remark.

Lawson also described similar age-related comments Hobson made to other 

GPI employees. Lawson claimed that Hobson intentionally overburdened 

him with added job assignments, with the goal that the ratcheted workload 

would lead Lawson to underperform.

In September 2010, Hobson reported that Lawson had assigned a

temporary payroll employee to manage human resources and safety functions

during Labor Day weekend, without first consulting Hobson. Later that 

month, Lawson was fired, owing significantly to the weekend duty incident, as 

well as to prior instances of poor performance. At the time, Lawson was fiftyeight years old.

STANDARD OF REVIEW

A trial court’s “evidentiary rulings are affirmed unless the district court

abused its discretion and a substantial right of the complaining party was

affected.” Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 581 (5th

Cir. 2004). We similarly examine the district court’s jury instructions for an

abuse of discretion and reverse when both “the charge as a whole leaves us 

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with substantial and ineradicable doubt whether the jury has been properly 

guided in its deliberations and the challenged instruction . . . affected the 

outcome of the case.” Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352 (5th Cir. 

2010) (alteration in original) (internal quotation marks omitted).

DISCUSSION

I. Evidentiary Rulings

A. “Pattern or Practice” Evidence

Lawson’s principal argument is that the district court improperly 

excluded Lawson’s proffered testimony recounting detailed examples of 

Hobson’s prior discriminatory conduct toward other GPI employees. Lawson 

argues that this additional testimony would have strengthened his proof of 

Hobson’s discrimination, underscoring Hobson’s history of forcing older 

employees to resign by the modus operandi of inducing and documenting 

performance shortcomings. Lawson also contends that he would have 

discussed the case of Bobby Woods, a GPI employee who was terminated after 

reporting similar behavior by Hobson, which Lawson offers as an explanation 

for his initial hesitance to report Hobson’s discriminatory conduct.

As Lawson notes, an ADEA plaintiff may establish that the defendant

engaged in a pattern or practice of discrimination by showing “by a

preponderance of the evidence that [the impermissible] discrimination was the

company’s standard operating procedure-the regular rather than the unusual

practice.” Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000)

(quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)). 

Testimony concerning “similarly situated employees and the reasons for their

discharge [is] relevant in proving a pattern and practice of age discrimination.” 

Harpring v. Cont’l Oil Co., 628 F.2d 406, 409 (5th Cir. 1980) (citing Fed. R. 

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Evid. 401 and 404(b)); cf. EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093-

94 (5th Cir. 1994) (holding that age-focused statements by a supervisor 

directed at the plaintiff over a four-year period “may indicate a pattern of 

discriminatory comments and as such are directly relevant to showing the 

existence of discriminatory motive”). However, a plaintiff may not effectively 

force the employer to defend “mini-trials” on other employees’ claims of

discrimination that are “not probative on the issue of whether [the plaintiff]

faced discrimination.” Wyvill, 212 F.3d at 303; see also Harpring, 628 F.2d at

410 (citing Fed. R. Evid. 403 and affirming the district court’s exclusion of 

evidence of other incidents of age discrimination as cumulative and as 

requiring “trying another lawsuit within the existing lawsuit”).

After sidebar discussion with counsel during the trial, the district court

made clear that it would “sustain” GPI’s objection to detailed testimony

concerning Bobby Woods under Federal Rule of Evidence 403, because “[w]e’re

being forced to try that case too.” Consistent with its admonition, however, 

the district court permitted Lawson to testify repeatedly, often over GPI’s 

objection, in a more limited fashion as to Hobson’s discriminatory conduct 

toward several GPI employees. Lawson also specifically referenced Woods

and Woods’s termination, and Lawson described his fear of retribution for

reporting Hobson’s asserted abuses. Moreover, the district court allowed 

Lawson’s counsel to cross-examine Hobson concerning his age-related 

comments to other employees, and the jury heard Hobson fail to deny making 

several of the statements. The district court struck a considered balance 

between permitting the jury to consider “pattern and practice” evidence and 

avoiding introduction of cumulative evidence, and we discern no abuse of 

discretion in its handling of the issue. See Harpring, 628 F.2d at 610. 

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Moreover, Lawson does not explain how excluding any more finely detailed 

discussion of Hobson’s past behavior affected his substantial rights at trial. 

Kanida, 363 F.3d at 581. The district court did not reversibly err in excluding 

Lawson’s further pattern and practice testimony.

B. Age of Replacement Evidence

Lawson argues that the district court abused its discretion in reading to 

the jury a withdrawn stipulation of the parties as to the age of Lawson’s

replacement at GPI, Cathy Engle, who was fifty-four years old. The district 

court announced this stipulated fact to the jury even though, previously, the 

court had sustained Lawson’s motion to withdraw the stipulation. Defense 

counsel further argued to the jury in closing that Engle’s similar age indicated 

that it was unlikely that GPI had discriminated against Lawson. Lawson 

contends that the district court erred because the age of his replacement was 

irrelevant to his theory of the case; he never sought to prove that he was 

replaced by a substantially younger worker. See O’Connor v. Consol. Coin 

Caterers Corp., 517 U.S. 308, 312 (1996) (invalidating a court-imposed

requirement that a plaintiff demonstrate that he was replaced by a worker

younger than the ADEA protected class of employees over forty-years-old,

because “[t]he fact that one person in the protected class has lost out to another

person in the protected class is thus irrelevant, so long as he has lost out 

because of his age.” (emphasis in original)).

While it may be true that Lawson withdrew his stipulation and

correspondingly never urged that his replacement’s age was evidence of GPI’s

discriminatory conduct, it does not follow that the district court reversibly 

erred. Engle’s age, close in proximity to Lawson’s, if properly admitted, would 

have been relevant evidence of GPI’s lack of a motive to discriminate based on 

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age. See O’Connor, 517 U.S. at 313 (“In the age-discrimination context, such 

an inference [of discrimination] cannot be drawn from the replacement of one

worker with another worker insignificantly younger.”); Nieto v. L&H Packing 

Co., 108 F.3d 621, 623-24 & n.7 (5th Cir. 1997) (holding that evidence of a 

defendant-employer’s mostly minority workforce and evidence that the 

Hispanic plaintiffs replacement was also Hispanic, was “not outcome 

determinative,” but was “certainly material to the question of discriminatory 

intent”); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) 

(stating that the plaintiff’s argument “incorrectly expands [Nieto’s] holding 

into a presumption that replacement by someone within one’s protected class 

is irrelevant.”). Given the relevance to GPI’s motive, we conclude that even if 

the district court erred in admitting the withdrawn stipulation, the error was 

not reversible.

II. Jury Instructions

Lawson raises three issues with the district court’s jury instructions,

including that the district court failed to issue several of his proposed jury

charge formulations. As noted, our review of jury instructions is for an abuse 

of discretion that “affected the outcome of the case.” Jowers, 617 F.3d at 352

(internal quotation marks omitted). We consider the district court’s refusal 

to provide a party’s favored jury instruction “reversible error only 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, 363 F.3d at 

578 (alteration in original) (internal quotation marks omitted).

Lawson first argues that the district court failed to instruct the jury

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sufficiently on how to evaluate Hobson’s discriminatory comments. Lawson 

argues that the court should have issued his requested instruction clarifying 

that the jury could infer discrimination by circumstantial evidence of Hobson’s 

remarks. However, the district court did issue an instruction explaining the 

meaning of circumstantial evidence and informing the jury that “law makes no 

distinction between direct and circumstantial evidence.” As described below, 

also, the district court issued a “Cat’s Paw” theory charge, instructing that the 

jury could hold GPI liable for age discrimination based on Hobson’s conduct in 

recommending Lawson for termination. Lawson does not describe how those

measures were insufficient to inform the jury’s evaluation of evidence of

Hobson’s comments. See Kanida, 363 F.3d at 578.

Lawson secondly objects to language in the district court’s Cat’s Paw

theory instruction. “Under the cat’s paw theory, a subordinate employee’s 

discriminatory remarks regarding a co-worker can be attributed to the 

workplace superior, ultimately the one in charge of making employment 

decisions, when it is shown that the subordinate influenced the superior’s 

decision or thought process.” Haire v. Bd. of Supervisors of La. State Univ. 

Agric. & Mech. Coll., 719 F.3d 356, 366 n.11 (5th Cir. 2013). The district court 

informed the jury that “[i]f a supervisor performs an act motivated by

discriminatory animus that is intended by the supervisor to cause the 

employee’s termination, and that act is [sic] determinative factor in the 

employee’s termination, then the employer is liable.” Lawson appears to

argue that the court erred in using the phrase “determinative factor” rather 

than “proximate cause,” drawing the latter formulation from the Supreme 

Court’s recent explication of the Cat’s Paw theory as it relates to the Uniformed 

Services Employment and Reemployment Rights Act, Staub v. Proctor Hosp., 

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131 S. Ct. 169 1186, 1192 (2011). Lawson, however, does not point to any 

legally significant deficiency in the district court’s choice of phrase, and he does 

not outline any prejudice flowing from the charge. See Jowers, 617 F.3d 

at 352.

Finally, Lawson challenges the district court’s decision to issue an 

instruction concerning the “same-actor” inference. “The ‘same actor’

inference arises when the individual who allegedly discriminated against the 

plaintiff was the same individual who hired the plaintiff and gives rise to an 

inference that discrimination was not the motive behind plaintiff’s 

termination.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 228 n.16 (5th

Cir. 2000). The district court specified that “[o]ne may conclude that there is 

no age discrimination involved if the same person hires and fires the employee

alleging age discrimination.”

Lawson argues that a same-actor charge is not warranted in this case

because testimony at trial may have indicated that Hobson was not the sole

actor involved in the decision to hire him. Lawson offers no authority for the 

claim that a same-actor inference is impermissible where the alleged 

discriminatory employee is one of several parties involved in the hiring 

decision. Even were we to assume arguendo that it would have been 

inappropriate to draw a same actor inference in this case had several actors

contributed to the decision to hire Lawson, Lawson’s own testimony was that 

Hobson was, in fact, the person who hired him at GPI. See Pierce v. Ramsey 

Winch Co., 753 F.2d 416, 425 (5th Cir. 1985) (“a defendant is also entitled to 

have the jury instructed on the law that supports defensive theories that are 

raised by the evidence”); Syrie v. Knoll Int’l, 7 48 F.2d 304, 310 (5th Cir. 1984) 

(“It is well established that a jury should be instructed on a legal theory only 

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if the evidence adduced at trial is sufficient to justify such an instruction.”) 

(internal quotation marks omitted)). The district court’s instruction also 

referred only to the singular, “same person” who both “hires and fires” the 

plaintiff. It further emphasized the permissive nature of the same-actor 

inference, stating only that “[o]ne may conclude that there is no age 

discrimination involved” if its conditions are met. See Russell, 235 F.3d at 

228 n.16. Given Lawson’s testimony, the jury was permitted to assess 

whether—and, if so, to assign significance to the fact that—Hobson was a 

relevant “same actor” in both the decisions to hire and fire Lawson.

In none of his challenges to the jury instructions does Lawson

demonstrate an abuse of discretion that “leaves us with substantial and

ineradicable doubt whether the jury has been properly guided” and that

“affected the outcome of his case.” Jowers, 617 F.3d at 352 (internal quotation

marks omitted). We affirm the district court’s jury instructions.

AFFIRMED.

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