Opinion
No. 10-10275.
March 16, 2011.
Cynthia R. Jarvis, Cocoa, FL, pro se.
Bradley M. Bole, U.S. Attorney's Office, Orlando, FL, Dawn Latasha Oliver, Kennedy Space Center, FL, for Defendant-Appellee.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:08-cv-00138-PCF-KRS.
After oral argument and careful consideration, we conclude that the judgment of the district court should be affirmed. Plaintiffs make only two arguments on appeal. First, plaintiff argues that the district court erred in failing to allow into evidence more details with respect to plaintiffs two previous complaints of discrimination and retaliation, the 2004 complaint and the 2005 complaint. This argument of plaintiff has to be evaluated in light of the fact that the district court did allow the plaintiff to testify as to the fact of the two complaints, the nature thereof, the resolution thereof, and the knowledge thereof on the par: of the relevant persons. Plaintiffs argument fails because, inter alia, plaintiff invited error in this regard. Although plaintiff initially opposed NASA's motion in limine to limit such evidence, at the subsequent pretrial conference, plaintiffs attorney and the district court engaged in a thorough discussion of the precise evidence that, was appropriate in this regard. And plaintiff expressly agreed, saying: "I don't want to go into it in detail . . . I don't intend to dwell on the facts of the prior cases." Even if there were not invited error, plaintiff clearly did not preserve her objection, and cannot on appeal demonstrate plain error. Additional details with respect to the 2004 and 2005 complaints are arguably relevant only with respect to retaliation vel non (or Lewellen's motive to retaliate). However, the jury found that plaintiff failed to prove an adverse employment action, wholly aside from any retaliation. In any event, the district court did not abuse its discretion in declining to permit plaintiff to testify as to even more detail.1; about the 2004 and 2005 complaints. The district court did not abuse its discretion in concluding that that would only have confused and misled the jury and shifted the focus away from the retaliation claim at issue. Fed.R.Evid. 403.
Plaintiffs second argument on appeal is that the district court erred in excluding evidence that the EEOC's resolution of the 2005 complaint included a recommendation that NASA consider disciplining Lewellen, and that NASA failed to do so. With respect to this argument, the record is clear that plaintiffs attorney at the pre-trial conference invited error, if any. Even if it were error, any error would be harmless for the same reason that plaintiffs first argument does not constitute plain error — i.e., the failure of NASA to discipline Lewellen with respect to the 2005 complaint is not remotely relevant to the jury's finding in this case that plaintiffs alleged retaliation did not constitute an adverse employment action. Finally, we conclude in any event that there was no error; the district court was within its discretion to exclude the evidence.
Accordingly, the judgment of the district court is
AFFIRMED.