Tammy Leonard v. JERRY GAUTREAUX, Individually

* 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opinion should not be published and is not precedent except under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
For the Fifth Circuit
_______________________
No. 98-30947
_______________________
TAMMY LEONARD, Plaintiff-Appellant,
v.
JERRY GAUTREAUX, Individually and as Fire Chief
of the Bayou Cane Volunteer Fire Department;
BAYOU CANE VOLUNTEER FIRE DEPARTMENT; TERREBONE PARISH FIRE
PROTECTION DISTRICT, NOS. 1, 2, 3;
TERREBONE PARISH COUNCIL; TERREBONE PARISH
CONSOLIDATED GOVERNMENT; AMERICAN ALTERNATIVE INSURANCE
CORPORATION; CHRIS HUBBELL
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
(97-CV-198-S)
______________________________________________
May 5, 2000
Before REAVLEY, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Tammy Leonard (“Leonard”) appeals the
district court’s take nothing judgment in her action for damages
for violation of her right to free speech. According to Leonard,
an erroneous jury instruction led the jury to err in finding that
Defendants-Appellees, Jerry Gautreaux (“Gautreaux”) et al., did not
terminate Leonard’s employment in retaliation for the exercise of

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her First Amendment rights and in violation of federal and state
whistleblower laws. Specifically, Leonard argues that the district
court gave the jury an erroneous instruction on the definition of
good faith. We affirm the district court’s judgment because, under
the plain error standard, the definition was not erroneous.
Gautreaux, as fire chief of Bayou Cane Volunteer Fire
Department, terminated Leonard. Leonard contended that her
termination was in retaliation for her exercise of free speech in
reporting misconduct by Gautreaux. The court charged the jury
that, “[f]reedom of speech includes reporting information to the
board of directors of an employer which she believes in good faith
to be a violation of the provision of law over which the board has
jurisdiction.” During deliberations, the jury requested in writing
“a more simplified explanation of good faith.” After discussing
the matter with counsel, the judge responded: “good faith
encompasses, among other things, an honest belief, the absence of
malice and the absence of design to defraud or to seek an
unconscionable advantage. Good faith means that the actor had a
genuine belief that the information which was sent or given was
true.” According to the district court, the first sentence of the
definition was taken from Black’s Law Dictionary (“BLD”) and the
second sentence was a definition used by this Court in a RICO case.
Leonard’s counsel objected to the BLD definition. In this appeal,
Leonard challenges the court’s use of “malice” in its definition of
good faith.
We must first decide whether the alleged error was preserved

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on appeal. Rule 51 of the Federal Rules of Civil Procedure
provides that a party may not assign as error giving or failing to
give an instruction unless the party objects, “stating distinctly
the matter objected to and the grounds of the objection.” This
Court has held that a general objection to an instruction is not
sufficient to satisfy Rule 51. Russell v. Plano Bank & Trust, 130
F.3d 715, 719 (5th Cir. 1997). In Russell, the plaintiff, on
appeal, argued that the district court’s omission of words from a
jury instruction was erroneous. Id. at 720. This Court held that
the objection was not sufficient because, although the plaintiff
objected to the charge, he did not specifically refer to omitted
language that should have been included. Id. at 719. We then
concluded that “our consideration of the issue is limited to plain
error review.” Id. at 721.
In the instant case, the court discussed with counsel the BLD
and RICO definitions of good faith. Appellees’ counsel indicated
that he preferred the BLD definition because it encompassed more
than the RICO definition. The court announced that it would use
the BLD definition and Leonard’s counsel, without explanation,
stated “[w]e would object to that definition.” Based on this
general objection, we conclude that Leonard failed to satisfy Rule
51's requirement that one objecting to a charge assign specific
grounds for the objection. Thus, we review the district court’s
instructions for plain error. Russell, 130 F.3d at 721.
This Court has previously described plain error review in a
civil case. As we stated in Highlands Ins. Co. v. National Union

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Fire Ins. Co. of Pittsburgh, 27 F.3d 1027, 1031-32 (1994):
In the context of Federal Rule of Criminal
Procedure 52(b), the Supreme Court has
recently announced that for an appellant in a
criminal case to prevail with a new argument
on appeal, he must show: (1) that an error
occurred; (2) that the error was plain, which
means clear or obvious; (3) the plain error
must affect substantial rights; and (4) not
correcting the error would “seriously affect
the fairness, integrity or public reputation
of judicial proceedings.” Federal Rule of
Civil Procedure 51 is even more restrictive
than Criminal Rule 52(b); indeed, one circuit
holds that it allows no new attacks on
instructions on appeal. We thus agree with
the Sixth Circuit that “[t]he principles and
decision enunciated in Olano [U.S. v. Olano,
507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508
(1993)] apply a fortiori in the civil context
where courts pay less strict attention to
procedural protocol.” Olano augments this
court’s longstanding rule that reversal for
plain error is “not a run-of-the-mill remedy”
and will occur “only in exceptional
circumstances to avoid a miscarriage of
justice.”
The core of Appellant’s quarrel with the district court’s
charge on good faith is the inclusion of malice in the definition
of this term. The question for us to decide is whether the court’s
definition of good faith amounts to plain error.
Considering the instruction as a whole, we are satisfied that
it does not amount to plain error. Even if we assume that the
court should not have included “malice” in the instruction, the
court did not define the term or give it emphasis. To the
contrary, the charge emphasizes that good faith means the honest
belief in the truthfulness of the statement.
Leonard also challenges the district court’s grant of judgment
as a matter of law in favor of the governmental entities.

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Leonard’s failure to establish that Gautreaux violated her First
Amendment rights makes it unnecessary for us to reach this
question.
Accordingly, the judgment of the district court denying
Appellant’s motion for a new trial is AFFIRMED.

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