Summary Calendar LORA M. BAKI v. Bigelow Management, Inc.

* 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this opinion should not be published and is not precedent except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
Fifth Circuit
F I L E D
February 28, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
06-40989
Summary Calendar
LORA M. BAKI,
Plaintiff-Appellee,
v.
BIGELOW MANAGEMENT, INC.; BUDGET SUITES OF AMERICA; BIGELOW
COLORADO LIMITED LIABILITY COMPANY BUDGET SUITES OF AMERICA,
INC., doing business as Budget Suites of America
Defendants-Appellants.
Appeal from the United States District Court for the
Eastern District of Texas, Sherman
4:04-CV-178
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Lora Baki was employed as a customer service representative by
the defendants (hereinafter referred to collectively as “Bigelow”)
for about three months. In her letter of resignation, she
complained that she had been the victim of sexual harassment by one
co-worker and one customer. Bigelow investigated and found her

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claims meritless. Ms. Baki filed suit in district court alleging,
inter alia, sexual harassment and constructive discharge. The jury
returned a verdict in her favor and awarded her damages in the
amount of $10,820.
On appeal, Bigelow raises only one issue. It argues that the
district court abused its discretion by excluding the testimony of
one witness, Howard Cooper, and that this exclusion substantially
prejudiced Bigelow’s defense. Ms. Baki, who was married during the
events giving rise to this litigation, had been having an
extramarital affair with Mr. Cooper. The defense wanted to
introduce his testimony to rebut Ms. Baki’s account of her mental
anguish. Bigelow intended to show that, during the time when she
claimed to be enduring harassment at work, she continued to see Mr.
Cooper on a regular schedule, without interruption, and
demonstrated no signs of anguish. Bigelow also believed Mr. Cooper
could testify as to other stressors in Ms. Baki’s life that might
have contributed to her suffering, apart from the harassment at
work. Finally, Bigelow argued that Mr. Cooper’s testimony would
point out certain inaccuracies and inconsistencies in Ms. Baki’s
testimony, which would negatively impact her credibility.
Ms. Baki moved to strike Mr. Cooper’s live testimony. After
hearing argument on the matter, the district judge concluded that
the defense could introduce the evidence it needed through its
other witnesses, particularly the various doctors they intended to

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call at trial. The judge found that these defense witnesses could
testify to the other stressors in Ms. Baki’s life and to consistent
patterns in her behavior, including the affair. The judge felt,
however, that for Mr. Cooper to take the stand and testify to the
affair and other matters would be “unfairly prejudicial” to the
plaintiff. The court issued a written order specifically allowing
the other defense witnesses to testify about the plaintiff’s affair
with Cooper and how that might have impacted Baki’s mental state,
but stated that Cooper himself would not be allowed to take the
stand.
We review a district court’s evidentiary rulings for abuse of
discretion. E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089,
1092–93 (5th Cir. 1994) (citations omitted). We will not reverse
unless the district court’s ruling results in substantial prejudice
to the complaining party. Id. at 1093.
It seems clear to us that the district court considered this
issue at length and was well within its discretion to strike Mr.
Cooper’s live testimony. However, even if we were to agree with
the defendant that Cooper’s testimony should have been allowed, the
error was clearly harmless. The jurors were presented with ample
evidence of everything to which Cooper would have testified. They
heard from multiple witnesses about the other stressors in Ms.
Baki’s life and the degree to which her normal routine was or was
not interrupted. They even heard evidence of the extramarital

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affair itself. In short, Mr. Cooper could not have told the jury
anything substantive that they did not already know. We are also
unimpressed by the defense’s argument that Cooper would have
undermined Ms. Baki’s credibility by pointing out inconsistencies
in her version of events. The purported inconsistencies are
speculative at best, because the issues on which he might have
contradicted her, such as the details of their relationship, did
not and likely would not have come up at trial. Moreover, if the
inconsistencies did exist, they were quite minor and had no bearing
on the basis of the lawsuit. We are satisfied, therefore, that
even if it was error to exclude Cooper’s testimony, it surely “did
not influence the jury or had but a very slight effect on its
verdict.” Haun v. Ideal Industries, Inc., 81 F.3d 541, 547 (5th
Cir. 1996) (internal quotations omitted). We see no reason to
overturn the jury’s verdict or damage award based on these
speculative or insubstantial arguments. Any error was harmless.
For the reasons stated, the district court’s ruling is
AFFIRMED.

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