McKenzie v. Lee

1Judge of the U. S. Court of International Trade, sitting by designation.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 00-30179
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CECIL MCKENZIE,
Plaintiff-Appellee,
VERSUS
HARRY LEE, Etc; ET AL.,
Defendants,
HARRY LEE, Sheriff, individually and in his capacity as
Sheriff of the Jefferson Parish Sheriff's Office,
Defendant-Appellant
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Appeal from the United States District Court
For the Eastern District of Louisiana
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July 20, 2001
(Opinion April 5, 2001, 5th Cir., 2001, 246 F.3d 494)
Before JONES and DeMOSS, Circuit Judges, and BARZILAY1 Judge.
PER CURIAM:
Upon reconsideration, we withdraw our previous opinion in this matter, reported at 246 F.
3d 494, and substitute the following.

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Jefferson Parish Louisiana Sheriff Harry Lee ("Sheriff") appeals from the final judgment
on jury verdict entered by the district court, Judge Edith Clement presiding. The district court
granted judgment in favor of Cecil McKenzie ("McKenzie") on his claims against the Sheriff for
employment discrimination. Following the jury verdict finding in favor of the plaintiff, Sheriff Lee
filed a motion to alter or amend the judgment pursuant to Rule 59(e), which the district court
denied. The Sheriff now claims that there was insufficient evidence to support the jury's finding
that he discriminated against McKenzie because of his race.
If the defendant properly moved for judgment as a matter of law at the conclusion of all
evidence pursuant to Rule 50, or departed from the technical requirements of the rule but satisfied
its purposes, the standard on appeal for evaluating the sufficiency of the evidence is whether the
evidence, considered in the light most favorable to the verdict, has such quality and weight that
reasonable and fair-minded persons could reach the same conclusion. See Polanco v. City of
Austin, 78 F.3d 968, 974 (5th Cir. 1996). The Sheriff did not make a motion for judgment as a
matter of law at the close of all evidence, and his departure from the rule was significant. While
the court will not "'demand a slavish adherence to the procedural sequence and . . . require these
defendants. . . to articulate the words of renewal once the motion had been taken under
advisement,' . . . this circuit has never completely disregarded the requirement that the defendant
must move for judgment as a matter of law at the close of all evidence." Id. at 974 (quoting
Bohrer v. Hanes Corp., 715 F. 2d 213, 217 (5th Cir. 1983). Thus, we review the jury verdict
under the plain error standard, examining only whether the plaintiff has "presented any evidence in
support of his claim." Id. (emphasis added) (citations omitted).
In an employment discrimination case, the plaintiff must show that he received disparate
treatment because of his race, and that the proffered nondiscriminatory reason for his treatment
was a pretext for racial discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

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802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d. 668, 677 (1973). McKenzie has presented some, albeit
minimal, evidence of treatment different from similarly situated non-members of his protected
class. See Williams v. Trader Pub. Co., 218 F. 3d 481, 484 (5th Cir. 2000) (holding that such
circumstantial evidence may be used to prove discrimination). He has therefore met the plain
error requirement of presenting any evidence supporting his claim. This court will adhere to its
longstanding rule that reversal for plain error is an extreme remedy and will occur only to avoid a
miscarriage of justice. See Rizzo v. Childrens' World Learning Center, Inc. 213 F.3d 209, 213
(5th Cir. 2000). The judgment appealed is therefore AFFIRMED.

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