Case: 09-50341     Document: 00511114414          Page: 1    Date Filed: 05/18/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 18, 2010

                                       No. 09-50341                         Lyle W. Cayce
                                                                                 Clerk

DRAYLONE L. WEATHERSBY,

                                                   Plaintiff-Appellant
v.

ONE SOURCE MANUFACTURING TECHNOLOGY, L.L.C.,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:08-CV-87


Before BARKSDALE, GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Draylone Weathersby (“Weathersby”) sued Defendant-
Appellee One Source Manufacturing Technology, L.L.C. (“One Source”) under
Title VII of the Civil Rights Act, alleging One Source did not hire him because
he is African-American. The matter went to trial before a jury, which returned
a verdict in favor of One Source. The district court accepted the jury’s verdict
and entered judgment, awarding costs to One Source.                        In this appeal,
Weathersby challenges two evidentiary rulings the district court made at trial.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-50341

      Weathersby sought to introduce into evidence a Letter of Determination
by the Equal Employment Opportunity Commission (“EEOC”) . In the letter, the
EEOC concluded that One Source had violated Title VII when it did not hire
Weathersby. The district court excluded the Letter of Determination pursuant
to Federal Rule of Evidence 403 because it concluded that its prejudicial nature
substantially outweighed any probative value. As the district court explained
in its ruling on Weathersby’s motion for a new trial, the letter had very little
probative value as it “merely lists the Plaintiff’s allegations and the Defendant’s
responses . . . without making any factual findings, repeats hearsay . . . without
bothering to identify the source of the statements and whether they were made
under oath or subject to perjury, and reaches the legal conclusion that the
Defendant violated Title VII . . . .” Weathersby v. One Source Mfg. Tech., L.L.C.,
No. A-08-CA-087-SS, at *6 (W.D. Tex. Apr. 2, 2009) (brackets and quotation
marks omitted) (citing Cortes v. Maxus Exploration Co., 

, 201-202
(5th Cir. 1992); EEOC v. Manville Sales Corp., 

, 1095 (5th Cir.
1994); Price v. Fed. Express Corp., 

, 725 (5th Cir. 2002); Haines v.
Tex. Workers Comp. Comm’n, No. 04-50309, 

, at *3 (5th
Cir. Jan. 3, 2005) (unpublished)). The district court further noted that this
court’s precedents recognize the high likelihood of unfair prejudice of an EEOC
letter containing a legal conclusion, potentially leading the jury to give the
EEOC’s decision improper weight “rather than make an independent decision
based on all the evidence presented at trial.” 

Additionally, the district
court observed that with the exception of the letter’s highly prejudicial legal
conclusion, the information provided therein “would have merely been
cumulative of the live testimony presented to the jury over the course of the
trial.” 

sought to introduce a resume that he claimed he
submitted to One Source when he applied for the job. Evidently, pursuant to its

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                                  No. 09-50341

powers under Federal Rules of Civil Procedure 16, 26 and 37, the district court
excluded the resume on the grounds that Weathersby had not identified it on the
proposed list of exhibits as mandated by the stipulated scheduling order and
that the resume was produced well after the scheduling order’s discovery cut-off
and only shortly before trial. The district court also pointed out that the resume
was found attached to an email that was sent to an unrelated prospective
employer, not One Source, and noted that it had been in Weathersby’s control
at all times “and could have been easily located through a diligent search.” 

Further, the district court stated that the late production would have
“unfairly prejudiced” One Source. 

the other hand, failed to
establish that the resume’s exclusion adversely affected the jury’s verdict. 

court’s evidentiary ruling[s] [are reviewed] for an abuse of
discretion.” Price v. Rosiek Constr. Co., 

, 707 (5th Cir. 2007) (citing
Triple Tee Golf, Inc. v. Nike, Inc., 

, 265 (5th Cir. 2007)). Having
carefully considered the parties briefs and pertinent portions of the record, we
find no abuse of discretion and AFFIRM essentially for the reasons provided by
the district court’s carefully crafted April 2, 2009 Order.
      We also GRANT One Source’s motion to strike the Affidavit of
Weathersby’s counsel, filed in support of Weathersby’s assertion that the district
court should not have excluded his resume.        The affidavit, which contains
hearsay testimony regarding a conversation Weathersby’s counsel allegedly had
with a juror, was never before the district court, and Weathersby never filed a
motion to supplement the record. See F ED. R. A PP. P. 10(a) & (e). “As a general
rule, [we] ‘will not enlarge the record on appeal with evidence not before the
district court.’” McIntosh v. Partridge, 

, 327 (5th Cir. 2008) (quoting
Trinity Indus., Inc. v. Martin, 

, 799 (5th Cir. 1992)); see also United
States v. Smith, 

(5th Cir. 1974) (holding that Rule 10(e) exists in
order to ensure that the record considered by this court accurately reflects what

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                                 No. 09-50341

actually happened at the district court level and not to introduce new evidence
in the court of appeals which was never before the district court). Weathersby
has not provided any reason why this court should depart from this rule in the
instant case, nor are we aware of any. Similarly, we also GRANT One Source’s
motion to strike Weathersby’s brief’s improper references to his response to One
Source’s motion for summary judgment in the district court because the
materials referred to therein were not introduced or admitted at trial. Moreover,
even had the materials been admitted, citation should, of course, have been to
the trial record, not to summary judgment materials.
AFFIRMED. MOTIONS GRANTED.




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