Case: 15-15409   Date Filed: 09/08/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15409
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:13-cv-03430-AT



STEVE L. THOMAS,

                                                           Plaintiff-Appellant,

                                   versus

HOME DEPOT USA, INC.,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (September 8, 2016)



Before WILLIAM PRYOR, FAY, and EDMONDSON, Circuit Judges.
                Case: 15-15409       Date Filed: 09/08/2016      Page: 2 of 6


PER CURIAM:



       This appeal is about trial by jury or by the Court and the Rules of Civil

Procedure.

       Steven Thomas, proceeding pro se, appeals the district court’s entry of final

judgment in favor of Home Depot USA, Inc. (“Home Depot”), following a bench

trial on Thomas’s failure-to-hire racial discrimination claim under 42 U.S.C. §

2000e-2 (“Title VII”). Briefly stated, Thomas contends that Home Depot -- based

on Thomas’s race -- rescinded an offer of employment. On appeal, in pertinent

part, Thomas challenges the district court’s denial of a jury trial. * Reversible error

has been shown; we vacate the judgment and remand.

       Thomas filed this civil action against Home Depot, alleging a violation of

Title VII. In his initial complaint -- which was filed properly with the district court

and served timely on Home Depot -- Thomas included a jury demand.

       Home Depot filed a motion to dismiss Thomas’s complaint for failure to

state a claim and for failure to exhaust administrative remedies. Thereafter, the

magistrate judge granted Thomas leave to file an amended complaint. In the

amended complaint, Thomas reasserted his failure-to-hire claim against Home




*
 Because we conclude that Thomas is entitled to a jury trial, we do not reach Thomas’s
arguments on appeal about the merits of his underlying Title VII claim.
                                               2
               Case: 15-15409     Date Filed: 09/08/2016    Page: 3 of 6


Depot, alleging more facts in support of his claim. Thomas’s amended complaint

did not repeat the jury demand.

      Home Depot moved for summary judgment. The district court denied Home

Depot’s motion. In doing so, the court concluded that Home Depot had failed to

show that Thomas could establish no prima facie case of race discrimination. The

district court also concluded that sufficient circumstantial evidence existed to allow

a reasonable “jury” to find that Home Depot’s proffered legitimate non-

discriminatory reasons for rescinding Thomas’s job offer were pretextual.

      Then, at a pretrial conference, the district court denied Thomas’s request for

a jury trial. The district court concluded that, although Thomas had requested a

jury trial in his original complaint, his amended complaint -- which contained no

jury demand -- superseded completely his original complaint. The district court

also explained that it was too late in the proceedings to grant an untimely request

for a jury trial and expressed concern about the difficulties a pro se plaintiff would

have representing himself adequately in front of a jury. Thomas moved for

reconsideration of the request for a jury trial; the district court denied that motion.

      The district court conducted a bench trial on Thomas’s claims and entered

judgment in favor of Home Depot. The district court found and concluded that

Thomas failed to show that Home Depot’s proffered legitimate, non-discriminatory




                                           3
               Case: 15-15409     Date Filed: 09/08/2016    Page: 4 of 6


reason for rescinding Thomas’s job offer was a pretext for race discrimination.

This appeal followed.

      We review de novo the interpretation of the Federal Rules of Civil

Procedure. We review with “exacting scrutiny” the denial of a jury trial. Mega

Life & Health Ins. Co. v. Pieniozek, 

, 1403 (11th Cir. 2009). The

right to a jury trial is fundamental, and -- although the right may be waived -- we

must “indulge every reasonable presumption against waiver.” 

We must vacate a judgment based upon an unconstitutional denial of a

jury trial, unless the denial constituted harmless error. LaMarca v. Turner, 

, 1544 (11th Cir. 1993).

      “The right to trial by jury as declared by the Seventh Amendment to the

Constitution . . . is preserved to the parties inviolate.” Fed. R. Civ. P. 38(a). A

party wishing to assert his right to a jury trial must “demand a jury trial by (1)

serving the other parties with a written demand -- which may be included in a

pleading -- no later than 14 days after the last pleading directed to the issue is

served; and (2) filing the demand in accordance with Rule 5(d).” Fed. R. Civ. P.

38(b). A party’s failure to serve and file a jury demand in compliance with Rule

38(b) constitutes a waiver of the right to a jury trial. Fed. R. Civ. P. 38(d). Once a

demand for a jury trial has been properly served and filed, however, it “may be

withdrawn only if the parties consent.” 

of Rule 38, the parties


                                           4
                 Case: 15-15409   Date Filed: 09/08/2016   Page: 5 of 6


may consent by filing a stipulation to a nonjury trial or by making an oral

stipulation on the record. See Fed. R. Civ. P. 39(a)(1).

      Here, Thomas included a demand for a jury trial in his original complaint.

Thomas’s jury demand was both served and filed properly, in accordance with

Rule 38(b). Thus, because Thomas’s demand for a jury trial was properly

completed, it could be withdrawn only with the consent of the parties. See Fed. R.

Civ. P. 38(d).

      That Thomas later filed an amended complaint containing no jury demand

did not render invalid Thomas’s initial jury demand or withdraw it. Generally

speaking, an amended complaint supersedes the original complaint: averments

against one’s adversaries dropped from the original complaint no longer count.

Pintando v. Miami-Dade Hous. Agency, 

, 1243 (11th Cir. 2007). A

jury demand, however -- although it may be included in a pleading -- is no element

of a complaint itself. See Fed. R. Civ. P. 8(a), 38. Most important, the ways by

which a proper jury demand, once made, may be withdrawn are governed in a case

like this one by the letter of the Federal Rules of Civil Procedure. Nothing in the

Federal Rules of Civil Procedure provides that a proper and complete jury demand

can be withdrawn by a later amended complaint totally silent on the issue of a jury

trial. Because Thomas’s amended complaint did not -- as a matter of law, could

not -- “supersede” Thomas’s earlier jury demand, and because the amended


                                          5
               Case: 15-15409     Date Filed: 09/08/2016    Page: 6 of 6


complaint included no consent of the parties to withdraw the earlier-made jury

demand, the district court erred in denying Thomas a jury trial.

      Although unconstitutional denials of jury trials may be subject to harmless

error review, an error may be deemed harmless “only where the issues could have

been disposed of on summary judgment or judgment as a matter of law.” Burns v.

Lawther, 

, 1243 (11th Cir. 1995). Here, the district court denied

Home Depot’s motions for summary judgment and for judgment as a matter of

law. Later, when finally deciding the case’s merits, the district court weighed the

evidence introduced at trial; and the court based its decision at least in part on a

determination about the credibility of testimony. On this record, we cannot say

that the district court’s denial of a jury trial was harmless: “questions of witness

credibility are the exclusive province of the jury.” See United States v. Hernandez,

, 815 (11th Cir. 2014).

      We vacate the judgment and remand for retrial before a jury.

      VACATED AND REMANDED.




                                           6