Filed: May 10, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT May 10, 2005 Charles R. Fulbruge III Clerk No. 04-30561 Summary Calendar TISHA C. LENSEY, Plaintiff-Appellant, versus CITY OF SHREVEPORT; JAMES N. ROBERTS, JR., Individually & In His Capacity as Chief of Police, Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana (5:02-CV-173) Before JONES, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Offi
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT May 10, 2005 Charles R. Fulbruge III Clerk No. 04-30561 Summary Calendar TISHA C. LENSEY, Plaintiff-Appellant, versus CITY OF SHREVEPORT; JAMES N. ROBERTS, JR., Individually & In His Capacity as Chief of Police, Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana (5:02-CV-173) Before JONES, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Offic..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-30561
Summary Calendar
TISHA C. LENSEY,
Plaintiff-Appellant,
versus
CITY OF SHREVEPORT; JAMES N. ROBERTS, JR., Individually & In His
Capacity as Chief of Police,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(5:02-CV-173)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Officer Tisha Lensey appeals, pro se, the adverse judgment for
her sexual and racial discrimination claims against the City of
Shreveport and James Roberts, the City’s former Chief of Police.
Officer Lensey contends the district court erroneously: denied her
motion for judgment as a matter of law (JMOL); failed to
differentiate in the jury instructions between damages for pain,
suffering, and embarrassment and those for mental distress; and
*
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this opinion should not be published and is not precedent except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.
denied her motion under FED. R. CIV. P. 37 for default judgment
against Chief Roberts.
In December 2000, Officer Lensey, a black female patrol
officer with the City’s Police Department, was placed on
administrative leave pending an investigation by the Department’s
Internal Affairs Bureau (IAB) into her off-duty arrest by the
Bossier City police for interfering with an investigation. The IAB
report concluded Officer Lensey had violated the Department’s
regulations for conduct unbecoming an officer and abuse of
position. After reviewing the IAB report, Assistant Chief of
Police Jim Herring, Officer Lensey’s direct superior, submitted a
memorandum to Chief Roberts recommending Officer Lensey’s
employment be terminated. After holding a pre-disciplinary
conference and reviewing the IAB report and Assistant Chief
Herring’s recommendation, Chief Roberts terminated Officer Lensey’s
employment. Chief Roberts found: Officer Lensey’s uncooperative
and disrespectful attitude towards the Bossier City Police
Department during its investigation and her arrest reflected poorly
on the Shreveport Police Department; and Officer Lensey had abused
her position to obtain a copy of the Bossier Police report
detailing the incident and her arrest. (Officer Lensey’s
employment has since been reinstated, with back-pay, pursuant to a
separate state-court action. See Lensey v. City of Shreveport Mun.
2
Fire and Police Civil Serv. Bd., 839 So. 2d 1032 (La. Ct. App.
2003)).
Officer Lensey filed this action in district court against the
City and Chief Roberts, seeking compensatory damages for pain and
suffering and punitive damages for violations of 42 U.S.C. § 1981
and Louisiana statute. Officer Lensey claimed: while working at
the Department, she was unlawfully discriminated against on the
basis of sex and race and in retaliation for a discrimination
compliant she had filed; and she was unlawfully terminated because
of her race and her sex. Officer Lensey’s pre-termination claims
were dismissed on summary judgment; a two-day jury trial was held
on her termination claims. (Officer Lensey was represented by
counsel in district court.)
At the beginning of trial, Officer Lensey moved under FED. R.
CIV. P. 37 for a default judgment against Chief Roberts. She
claimed Chief Roberts lied when deposed by stating that another
City police officer, a white male who had been arrested while off-
duty, had cooperated with the police during his arrest. Several
days before trial, Chief Roberts amended his deposition, clarifying
that he had not reviewed the police officer’s file before being
deposed and had been mistaken: the police officer had not
cooperated during arrest. After both parties submitted briefs, the
district court ordered Chief Roberts to pay attorney’s fees
3
incurred by Officer Lensey in making her Rule 37 motion, but did
not enter default judgment against him.
At the close of Officer Lensey’s evidence, Chief Roberts moved
for JMOL pursuant to FED. R. CIV. P. 50 on the claims against him in
his individual capacity, contending no individual liability could
attach because he was not Officer Lensey’s employer for § 1981
purposes. The motion was granted; Officer Lensey does not appeal
this ruling.
At the conclusion of the City’s evidence, Officer Lensey moved
for JMOL. The district court took the motion under advisement and
submitted the case to the jury, which rendered a verdict in favor
of the City. Judgment against Officer Lensey was entered on 18 May
2004. She did not renew her JMOL motion post-trial and filed a
notice of appeal on 8 June 2004.
Officer Lensey first contends the district court erred in
denying her JMOL motion because there was sufficient evidence to
support a judgment in her favor. The City replies Officer Lensey
may not appeal the denial of this motion, even though taken under
advisement, because she failed to renew it post-verdict. We
assume, arguendo, that such failure does not preclude our review.
A JMOL-denial is reviewed de novo. E.g., Bellows v. Amoco Oil Co.,
118 F.3d 268, 273 (5th Cir. 1997), cert. denied,
522 U.S. 1068
(1998). Such denial must be affirmed unless “there is no legally
sufficient evidentiary basis for a reasonable jury[’s]” verdict.
4
FED. R. CIV. P. 50(a)(1); e.g., Lane v. R.A. Sims, Jr., Inc., 241
F.3d 439, 445 (5th Cir. 2001). Officer Lensey does not describe
how, contrary to the jury’s finding, she satisfies this standard.
Although Officer Lensey listed the jury instructions as being
an issue, she fails to address this issue in the body of her brief.
Therefore, any jury instruction issue is waived. See United States
v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000); see also FED. R.
APP. P. 28(a)(9)(A).
Finally, Officer Lensey contends the district court erred in
denying her Rule 37 motion for default judgment against Chief
Roberts for his conduct during discovery. Denial of a Rule 37
motion is reviewed for abuse of discretion. E.g., Tollett v. City
of Kemah, 285 F.3d 357, 363 (5th Cir.), cert. denied,
537 U.S. 883
(2002). Officer Lensey fails to demonstrate how the district court
abused its discretion by awarding reasonable sanctions against
Chief Roberts instead of a default judgment.
AFFIRMED
5
