O'Connor Ruling in Bruton Stephens Case

7/29/2019 O'Connor Ruling in Bruton Stephens Case

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRUTON STEPHENS, SR.,

Plaintiff,

v.

CITY OF DALLAS,

Defendant.

Civil Action No. 3:10-cv-191-O

MEMORANDUM OPINION & ORDER

Before the Court are Defendant City of Dallass Renewed Motion for Judgment as a Matter

of Law and Motion for New Trial and Brief in Support (ECF Nos. 115, 116); Plaintiff Bruton

Stephens, Sr.s Response, Brief in Support, and Appendix (ECF Nos. 118, 119, 120); and

Defendants Reply (ECF No. 121). Also before the Court are Plaintiffs Motion for Entry of

Judgment (ECF No. 114) and Defendants Response (ECF No. 117).

Having reviewed the motions, briefing, and applicable law, the Court finds that Defendants

Renewed Motion for Judgment as a Matter of Law is GRANTED in part and DENIED in part and

Defendants Motion for New Trial is GRANTED in part and DENIED in part. Additionally, the

Court finds that Plaintiffs Motion for Entry of Judgment (ECF No. 114) is DENIED.

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I. FACTUAL BACKGROUND1

Plaintiff Bruton Stephens, Sr., an African-American male, was hired by Defendant City of

Dallas as a senior electronic technician in the Transportation Operations Division of the Public

Works and Transportation Department on December 24, 2003. See Jury Charge 3, ECF No. 105.

In 2007, Robert Espinoza (Espinoza), Plaintiffs supervisor, designated Plaintiff lead technician.

See id.; Pl.s App. Supp. Mot. Summ. J. (Stephens Depo Jan. 18, 2011), at App. 207-08, ECF No.

34; Trial R., Vol. 3, at 132:20-24, 133:10-14, ECF No. 110. As lead technician, Plaintiff took on

additional responsibilities, including but not limited to reviewing job tickets, processing customer

service requests, preparing payroll, and filling in as supervisor when Espinoza was absent. See Pl.s

App. Supp. Mot. Summ. J. (Stephens Depo Jan 18, 2011), at App. 207-08, 314-15, ECF No. 34;

Trial R., Vol. 1, at 106:20-107:6, 108:16-18, 109:1-2, 147:11-25, ECF No. 108; id. Vol. 2, at 26:18-

27:13, ECF No. 109; id. Vol. 3, at 61:7-24, 134:7-135:3, 135:20-25, 136:1-2, ECF No. 110.

Before being removed from his lead technician position, Plaintiff complained of, among

other things, race discrimination in the workplace. See Trial R., Vol. 1, at 120:23-25, 134:2-15,

136:16-137:13, ECF No. 108; id. Vol. 3, at 46:24-47:1, 206:4-8, 208:4-12, ECF No. 110. In March

2009, Plaintiff was removed of his lead technician position. Id. Vol. 1, at 140:1-21; id. at Vol. 3, at

147:19-22, ECF No. 110; Pl.s App. Supp. Mot. Summ. J. (Stephens Depo Feb. 7, 2011), at App.

336), ECF No. 34. In the months thereafter, Plaintiff filed a number of other grievances and

complaints related to retaliation and race discrimination. See Jury Charge 3-4, ECF No. 105. As

In considering a motion for judgment as a matter of law the court must draw all reasonable inferences in1

favor of the non-moving party, and it may not make credibility determinations or weigh the evidence. Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). [T]he court should give credence to the evidence favoring

the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at leastto the extent that evidence comes from disinterested witnesses. Id.

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part of Defendants Reduction in Force (RIF), Plaintiff was effectively laid off on October 1,

2009. See id. at 4.

II. PROCEDURAL BACKGROUND

Plaintiff filed his original petition in Texas state court on December 23, 2009, alleging that

Defendant violated his free speech rights under the First Amendment of the Constitution, retaliated

and discriminated against him in violation of Title VII of the Civil Rights Act of 1964, and retaliated

against him in violation of Chapter 554 of the Texas Government Code (Texas Whistleblower

Act). See generallyNotice Removal, ECF No. 1. Defendant removed the case to this Court on

February 1, 2010. See id. Prior to trial, the Court dismissed Plaintiffs (1) Title VII race

discrimination claim; (2) Title VII retaliation claims based on the temporary assignment to retrieve

flashers and sandbags and the failure of Defendant to rehire Plaintiff after the RIF; and (3) Texas

Whistleblower Act claim. Order, Mar. 19, 2012, ECF No. 55; Trial R. Vol. 1, at 3:4-7:19, ECF No.

108. A trial was held from October 22, 2012 through October 30, 2012. At the close of Plaintiffs

case, Defendant moved for judgment as a matter of law. Trial R., Vol. 4, at 233:11-248:11, ECF No.

111. The Court granted that motion as to Plaintiffs First Amendment claim and Plaintiffs Title

VII retaliation claim for sweeping the parking lot, and deferred ruling on the remaining claims. Id.

at 233:11-248:15. After closing arguments, the Court submitted six questions to the jury. See

generally Jury Charge, ECF No. 5. The jury answered yes to Question No. 1, which asked whether

removal of Plaintiffs lead technician duties constituted an adverse employment action. Id. The jury

also answered yes to question No. 2, which asked whether Plaintiffs protected activity was a

motivating factor for Defendants removal of his lead technician duties. Id. The jury answered no

to Question No. 3, which asked whether Defendant would have removed Plaintiffs technician duties

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even if it had not considered Plaintiffs protected activity. Id. The jury responded yes to Question

No. 4, which asked whether Plaintiffs protected activity was a motivating factor for Defendants

termination of him. Id. The jury answered no to Question No. 5, which asked whether Defendant

would have made the same decision to terminate Plaintiff even if it had not considered Plaintiffs

protected activity.Id. Lastly, in response to Question No. 6, which asked what sum of money would

fairly compensate Plaintiff for his damages caused by Defendant, the jury returned a verdict in favor

of Plaintiff in the amount of $13,000 for back pay and benefits, $195,000 for past mental anguish

and emotional distress, and $1,000 for past medical expenses. The unanimous jury verdict was

certified on October 30, 2012. Id.

III. LEGAL STANDARDS

A. Judgment as a Matter of Law

Rule 50 of the Federal Rules of Civil Procedure governs motions for judgment as a matter

of law in jury trials. See Fed. R. Civ. P. 50;see also Weisgram v. Marley Co., 528 U.S. 440, 448-49

(2000). Rule 50(a) authorizes the entry of judgment as a matter of law [i]f a party has been fully

heard on an issue during a jury trial and the court finds that a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party on that issue. SeeJames v. Harris Cnty.,

577 F.3d 612, 617 (5th Cir. 2009) (quoting Fed. R. Civ. P. 50(a)). It allows the trial court to

remove cases or issues from the jurys consideration when the facts are sufficiently clear that the

law requires a particular result. Weisgram, 528 U.S. at 448 (quoting 9 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure 2521 (2d ed. 1995)). If the court does not grant

a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have

submitted the action to the jury subject to the courts later deciding the legal questions raised by the

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motion. Fed. R. Civ. P. 50(b).

[I]n entertaining a motion for judgment as a matter of law, the court should review all of the

evidence in the record. Reeves, 530 U.S. at 150. In doing so, however, the court must draw all

reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence. Id. (citingLytle v. Household Mfg., Inc., 494 U.S. 545, 554-

55 (1990)). Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inference from the facts are jury functions, not those of a judge. Id. at 150-51 (quotingAnderson

v. Liberty Lobby, 477 U.S. 242, 255 (1986)). Thus, although the court should review the record as

a whole, it must disregard all evidence favorable to the moving party that the jury is not required to

believe. Id. at 151.

A motion for judgment as a matter of law is appropriate if, after considering the evidence

presented and viewing all reasonable inferences in the light most favorable to the nomovant, the facts

and inferences point so strongly in favor of the movant that a rational jury could not arrive at a

contrary verdict. Murray v. Red Kap Indus., Inc., 124 F.3d 695, 697 (5th Cir. 1997). If there is

substantial evidence of such quality and weight that reasonable and fair-minded jurors might reach

a different conclusion, then judgment as a matter of law is not appropriate. Id. We must

remember, however, that evidence sufficient to support a jury verdict must besubstantialevidence.

Guile v. United Sates, 422 F.3d 221, 227 (5th Cir. 2005). [T]he party opposing the motion must

at least establish a conflict in substantial evidence on each essential element of [his] claim. See

Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002) (citingBoeing Co. v. Shipman, 411

F.2d 365, 374 (5th Cir. 1969) (en banc)). An inference that would be mere speculation and

conjecture . . . is not sufficient to support a jury verdict. Guile, 422 F.3d at 226 (quotingAnthony,

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284 F.3d at 583-84). The standard of review with respect to a jury verdict is especially

deferential.Lubke v. City of Arlington, 455 F.3d 489, 494 (5th Cir. 2006) (quotingBrown v. Bryan

Cnty., 219 F.3d 450, 456 (5th Cir. 2000)).

B. New Trial

Under Rule 59 of the Federal Rules of Civil Procedure, a new trial may be granted after a jury

trial for any reason for which a new trial has heretofore been granted in an action at law in federal

court. Fed. R. Civ. P. 59 (a)(1)(A). While this rule does not enumerate specific grounds for

granting a new trial, the Fifth Circuit has found that a new trial is appropriate where: (1) the verdict

is against the weight of the evidence, (2) the amount of damages awarded is excessive, or (3) the trial

was unfair or marred by prejudicial error. Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th

Cir. 1991). Courts do not grant new trials unless it is reasonably clear that prejudicial error has

crept into the record or that substantial justice has not been done, and the burden of showing harmful

error rests on the party seeking the new trial. Del Rio Distrib., Inc. v. Adolph Coors Co., 589 F.2d

176, 179 n.3 (5th Cir. 1979).

C. Title VII Retaliation

To make out a prima facie case of retaliation, a plaintiff must show: (1) that she engaged

in activity protected by Title VII [of the Civil Rights Act of 1964], (2) that an adverse employment

action occurred, and (3) that a causal link existed between the protected activity and the adverse

action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002);see also LeMaire v. La. Dept of Transp.

& Dev., 480 F.3d 383, 388 (5th Cir. 2007). If the plaintiff establishes a prima facie case, the burden

shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment

action. LeMaire, 480 F.3d at 388. If the employer states a legitimate, non-retaliatory reason, the

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burden shifts back to the plaintiff to demonstrate that the employers reason is either a pretext or

that the [employers] reason, while true, is only one of the reasons for its conduct, and another

motivating factor is the plaintiffs protected [activity] (mixed-motive[s] alternative).Keelan v.

Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005) (alteration in original) (quotingRachid

v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)). If the plaintiff relies on the mixed-

motives analysis, as Plaintiff does here, the employer has the opportunity to present an affirmative

defense that it would have undertaken the adverse employment action even in the absence of the

prohibited consideration. See Smith v. Xerox Corp., 602 F.3d 320 333 n.50 (5th Cir. 2010);Hanks

v. Shinseki, No. 3:081594G, 2010 WL 3000835, at *4 (N.D. Tex. July 28, 2010).2

IV. ANALYSIS

Defendant renewed its Motion for Judgment as a Matter of Law and filed its Motion for a

New Trial. With respect to Defendants Motion for Judgment as a Matter of Law, Defendant argues

that Plaintiff failed to present legally sufficient evidence that (1) Defendants removal of Plaintiffs

lead technician duties was an adverse employment action; (2) Defendant had a retaliatory motive

when removing Plaintiffs lead technician duties; (3) Defendant had a retaliatory motive when it

included Plaintiffs position in the 2009 RIF; and (4) Plaintiff suffered compensable mental anguish

and emotional suffering. See Def.s Renewed Mot. J. Matter Law & Mot. New Trial 2, ECF No.

115. With respect to Defendants Motion for New Trial, Defendant argues that the following

findings were against the great weight of the evidence: (1) Defendants removal of Plaintiffs lead

technician duties amounted to an adverse employment action; (2) liability for retaliation with respect

This was the state of the law in the Fifth Circuit on causation in retaliation cases at the time this trial was held.2

The Court discusses below the Supreme Courts decision to address this issue in its current term. See Part IV.D.

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to removal of Plaintiffs lead technician duties; (3) liability for retaliation with respect to the

inclusion of Plaintiffs position in the 2009 RIF; and (4) the finding of $195,000 in damages for past

emotional distress. Id. at 3. Defendant further argues that a new trial is warranted because the

Court erroneously instructed the jury. Id. The Court will address each of Defendants evidentiary

concerns in turn.

A. Removal of Lead Technician Position

1. Adverse Employment Action

Defendant contends that Plaintiff failed to present legally sufficient evidence that removal

of Plaintiffs lead technician duties was an adverse employment action. Def.s Br. Supp. Renewed

Mot. J. Matter Law & Mot. New Trial 4-10, ECF No. 116. Defendant also contends that the jurys

finding was against the great weight of the evidence. Id. The Court disagrees with Defendant.3

The threshold issue for the Court is whether Plaintiff held the lead technician position.

Defendant argues that such a position never existed. See id. at 7-9. According to Defendant, it is

impossible to conclude with any certainty . . . what [Plaintiffs] leadership duties entailed. Id. at

7. Plaintiff asserts that there is sufficient evidence in the record from which the jury could have

concluded that Plaintiff held the lead technician position from 2007 to March 2009. Br. Supp. Pl.s

Resp. Oppn Def.s Mot. J. Matter Law & Mot. New Trial 2-6, ECF No. 119. Plaintiff further

asserts that this finding was not against the great weight of the evidence. Id. The Court agrees with

Plaintiff.

Where the Court finds that there is sufficient evidence supporting the jurys findings, it also finds that the3

jurys findings are not against the great weight of the evidence. Thus, with respect to Part IV.A. through IV.C., the

Courts analysis applies to both Defendants Renewed Motion for Judgment as a Matter of Law and Defendants Motionfor New Trial. Part IV.D. only addresses Defendants Motion for New Trial.

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programming school flashers, reviewing and approving time sheets, assisting with payroll, receiving

complaints from lower level technicians, and supervising the other technicians when needed. Id.

Vol. 1, at 106:20-107:6, 108:16-18, 109:1-2, 147:11-25, ECF No. 108; id. Vol. 2, at 26:18-27:13,

ECF No. 109; id. Vol. 3, at 61:7-24, 134:7-135:3, 135:20-25, 136:1-2, ECF No. 110. Indeed,

Defendants procedure manual gives the supervisor of Signal Maintenance the right to designate a

lead technician. Id. Vol. 2, at 27:1-13, ECF No. 109; id. Vol. 3, at 59:3-9, 134:12-135:3, ECF No.

110. According to Defendants manual, the lead technicians duties included interacting with

citizens regarding how signal lights operate, working with clerical staff regarding billing, and acting

as the lead supervisor in the actual supervisors absence. Id. Vol. 2, at 27:1-13, ECF No. 109; id.

Vol. 3, at 59:3-9, 134:12-135:3, ECF No. 110; Pl.s Ex. 74. Given this evidence, it was reasonable4

for the jury to conclude that the aforementioned duties were included within Plaintiffs lead

technician position.

Having determined there is sufficient evidence indicating which duties were included within

the lead technician position, the next question is whether there is sufficient evidence supporting a

finding that Plaintiff was effectively removed from his lead technician position. Plaintiff testified

that in March 2009, Wong stripped him of his duties of programming school flashers, processing job

tickets and customer service requests, interacting with customers, processing payroll, and filling in

as supervisor when Espinoza was away. Trial R., Vol. 1, at 147:13-25, ECF No. 108; id. Vol. 2, at

27:2-21, 32:14-17. Plaintiff also testified that Wong instructed lower level technicians and other

employees not to report incidents to Plaintiff. Id. Vol. 1, at 147:22-25, ECF No. 108. Espinoza

Although Defendants manual uses the term lead supervisor instead of lead technician, there is ample4

evidence in the record that the lead supervisor was understood to mean lead technician. See Trial R., Vol. 3, at 59:3-9, 134:12-135:3, ECF No. 110.

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confirmed that in March 2009 Wong said to him that he didnt want [Plaintiff] to be in charge any

longer of the job tickets or the service requests and didnt want him being up in the office area. Id.

Vol. 3, at 147:19-22, ECF No. 110. Espinoza admitted that he may have authorized Plaintiff in the

office area after March 2009, but he is unsure whether Plaintiff continued to help with payroll. Id.

at 164:13-19.

Additionally, on cross examination, Plaintiff backtracked from his original contention that

after March 12, 2009, he was no longer allowed to program school flashers. Id. Vol. 2, at 31:22-24.

Plaintiff also clarified that at times he still interacted with customers when programming the

school flashers. Id. at 31:22-32:1. However, Plaintiff maintained that he no longer processed job

tickets or spoke to customers regarding customer service requests. Id. at 32:2-17, 33:24-34:2.

Plaintiff also never stated that he filled in for Espinoza as supervisor after March 12, 2009. Id. at

34:3-7.

Given the foregoing, the Court finds that the jury could have reasonably concluded that after

March 12, 2009, Plaintiff was no longer allowed to (1) fill in as supervisor in Espinozas absence,

(2) process job tickets and customer service requests, (3) help with payroll, and (4) receive reports

from other technicians and employees related to problems at work.

The ultimate question is whether removal of these lead technician duties was a materially

adverse employment action. Defendant argues that, if anything, Plaintiffs harms are trivial and

amount to nothing more than petty slights or minor annoyances that often take place at work and

that all employees experience. Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial

4-10, ECF No. 116. Plaintiff contends that Wong effectively demoted Plaintiff and, at the very least,

because of Wongs actions Plaintiff was in an objectively worse position. Pl.s Br. Supp. Resp.

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Oppn Def.s Mot. J. Matter Law & Mot. New Trial 2-6, ECF No. 119. The Court agrees with

Plaintiff.

An adverse employment action in the context of a Title VII retaliation claim must be

materially adversethat is, one that would dissuade[ ] a reasonable worker from making or

supporting a charge of discrimination. Stewart v. Miss. Transp. Commn, 586 F.3d 321, 331 (5th

Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The

purpose of this objective standard is to separate significant from trivial harms and filter out

complaints attacking the ordinary tribulations of the workplace. Id. (quotingBurlington N., 548

U.S. at 68). Thus, petty slights and minor annoyances are typically not considered adverse

employment actions. Burlington N., 548 U.S. at 68. Even when an adverse action is intended by

the employer as retaliation, it still must satisfy this materiality standard. See Stewart, 586 F.3d at

331. The standard for harm is objective. Burlington N., 548 U.S. at 68. Thus, determining

[w]hether a reasonable employee would view the challenged action as materially adverse involves

questions of fact generally left for a jury to decide. McArdle v. Dell Prods., L.P., 293 F. Appx 331,

337 (5th Cir. 2008); see also Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008)

(Burlington also strongly suggests that it is for a jury to decide whether anything more than the most

petty and trivial actions against an employee should be considered materially adverse to him and

thus constitute adverse employment actions. (citingBurlington N., 548 U.S. at 72-73)).

Defendant directs the Courts attention to a number of opinions where the appellate court

found that summary judgment was appropriate because the actions about which the plaintiffs

complained were not materially adverse. For example, Defendant argues that the Fifth Circuits

opinion in Grice v. FMC Tech, Inc., 216 F. Appx 401 (5th Cir. 2007), is closely analogous to this

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case. The Court disagrees. First, Grice was dismissed on summary judgment rather than after a full

trial on the merits. See Grice, 216 F. Appx at 407-08. Additionally, the plaintiff in Grice

complained that the defendant had refuse[d] to allow him to act as a step-up lead when a Lead

Assembler [was] absent. Id. at 404. There was no evidence in the record that the plaintiff had been

the step up lead previously, much less for at least two years. Cf. supra Part IV.A. Here, as noted

above, Plaintiff has provided sufficient evidence that his immediate supervisor and other technicians

recognized him as the lead technician from 2007 to March 2009, and he was effectively removed of

his lead technician position because he was unable to continue performing a number of duties

originally assigned thereunder. Based on the foregoing, the Court finds that Grice does not control

the resolution of the issues in the present case.

Finally, the Court finds that the harms about which Plaintiff complains are not so trivial

that the jurys finding of material adversity should be vacated. As noted above, after March 12,

2009, Plaintiff no longer (1) processed job tickets and customer service requests, (2) filled in as

supervisor for Espinoza, or (3) helped with payroll. Trial R., Vol. 1, at 147:13-25, ECF No. 108; id.

Vol. 2, at 27:2-21, 32:2-17, 33:24-34:7, ECF No. 109. The trial record also provides that pursuant

to Wongs recommendation other employees were instructed to stop reporting issues to Plaintiff.

Id. Vol. 1, at 147:22-25, ECF No. 108. Such harms establish that Plaintiff suffered a loss of prestige

and was effectively demoted. Accordingly, the Court finds that removal of Plaintiffs lead technician

duties constituted a materially adverse employment action. SeeBreaux v. City of Garland, 205 F.3d

150, 157 (5th Cir. 2000) (explaining that demotions are adverse employment actions);Alvarado v.

Tex. Rangers, 492 F.3d 605, 613 (5th Cir. 2007) (providing that a materially adverse employment

action may include a demotion if the new position proves objectively worsesuch as being less

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prestigious or less interesting or providing less room for advancement);see also McArdle, 293 F.

Appx at 337 (Whether a reasonable employee would view the challenged action as materially

adverse involves questions of fact generally left for a jury to decide.) (citingBurlington N., 548 U.S.

at 71-73). Therefore, Defendants Motion for Judgment as a Matter of Law and Motion for New

Trial on this ground are DENIED.

2. Retaliatory Motive

Defendant contends that there was insufficient evidence for a reasonable jury to conclude that

Plaintiffs reports of race discrimination and theft in the workplace caused Wong to retaliate against

Plaintiff. Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 10-12, ECF No. 116.

Defendant further contends that the jurys finding was against the great weight of the evidence, and

that Defendant had a legitimate non-retaliatory reason for removing Plaintiffs lead technician duties.

Id. Plaintiff argues that the record is replete with evidence of Wongs retaliatory motive in

removing [Plaintiff] from his lead technician position, and a jury could reasonably have concluded

that Defendants explanations for removing Plaintiffs lead technician duties are merely pretextual.

Br. Supp. Pl.s Resp. Oppn Def.s Mot. J. Matter Law & Mot. New Trial 7-11, ECF No. 119. The

Court agrees with Plaintiff.

According to Defendant, Wong removed Plaintiff from his lead technician duties to ensure

fairness by rotating leadership opportunities among the other senior electronic technicians and

because Stephens was involved in personnel matters. Def.s Br. Supp. Renewed Mot. J. Matter

Law & Mot. New Trial 10-12, ECF No. 116. However, the trial record undercuts Defendants

proffered explanations. First, the removal of Plaintiffs lead technician duties came mere weeks after

Plaintiff filed grievances and complaints of race discrimination. Trial R., Vol. 1, at 119:10-14,

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136:16-137:1, 137:22-23, 139:21-25, 140:1-5, 140:15-21, ECF No. 108; id. Vol. 3, at 30:17-22,

46:24-47:1, ECF No. 110. While temporal proximity alone is insufficient to establish causation,

time lapse is one element for the court to consider. See Strong v. Univ. HealthCare Sys., L.L.C., 482

F.3d 802, 808 (5th Cir. 2007); Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

Furthermore, when asked why fairness to the other senior electric technicians became a concern on

March 12, 2009, the date Plaintiff was removed from his lead technician position, the jury could

have reasonably found Wong to be evasive. Trial R., Vol. 3, at 53:22-54:7, ECF No. 110. The jury

also could have reasonably found Wong to be evasive when being asked why this fairness concern

did not extend to other positions with the City of Dallas. Id. at 54:8-23, ECF No. 110. There was

also testimony that Wong was upset about Plaintiff filing the grievances and complaints of race

discrimination.Id. at 148:22-24;see also Marroquin v. City of Pasadena, 524 F. Supp. 2d 857 (S.D.

Tex. 2007). Indeed, Wong went so far as to admit that he removed Plaintiff from his lead technician

position, at least in part, because Plaintiff was filing grievances and making complaints. Trial R.,

Vol. 3, at 61:5-62:4, ECF No. 110. There is also ample evidence in the record that Wong had

exhibited retaliatory conduct toward Plaintiff before Wong removed Plaintiffs lead technician

duties. See, e.g., Trial R., Vol. 3, 24:23-25:1, ECF No. 110. For example, the day after Stephens

filed his first grievance, Wong instructed him to clean and sweep the parking lot. See id.5

Finally, the Court notes that the jury need not accept Defendants explanations as to why it

removed Plaintiffs lead technician position. The jury may reasonably infer from the falsity of the

explanation that the employer is dissembling to cover up a [retaliatory] purpose. Such an inference

The Court dismissed as a matter of law Plaintiffs retaliation claim based on cleaning and sweeping the parking5

lot. See Trial R., Vol. 4, at 247:23-248:11, ECF No. 111. Plaintiff presented this evidence to show Wongs retaliatorymotive towards Plaintiff. Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 10, ECF No. 116

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is consistent with the general principle of evidence law that the factfinder is entitled to consider a

partys dishonesty about a material fact as affirmative evidence of guilt. Smith v. Xero Corp., 584

F. Supp. 2d 905, 915 (N.D. Tex. 2008)), affd, 602 F.3d 320 (5th Cir. 2010) (citing Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). In this case, it appears as though the

jury, at least in part, drew its own reasonable inferences that Defendants proffered explanations

were pretextual.

Based on the foregoing, the Court finds the evidence legally sufficient to support the jurys

findings of causation. Accordingly, Defendants Motion for Judgment as a Matter of Law and

Motion for New Trial on this ground are DENIED.

B. Reduction in Force

Defendant contends that there was no evidence before the jury of a causal connection

between Plaintiffs protected complaints and the fact that his position was included in the Reduction

in Force (RIF). Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 12-18, ECF No.

116. Defendant asserts that the jurys finding is against the great weight of the evidence, and that

even if causation existed, Defendants legitimate business reason for eliminating Plaintiffs position

precludes Plaintiffs recovery. See id. Plaintiff argues that there is more than sufficient evidence

in the record of causation. Br. Supp. Pl.s Resp. Oppn Def.s Mot. J. Matter Law & Mot. New Trial

11-17, ECF No. 119. The Court finds that there was insufficient evidence to support the jurys

finding.

As noted above, to prevail on a Title VII retaliation claim, the plaintiff must prove as part of

his prima facie case that a causal connection existed between the protected activity and the adverse

employment action. SeeMesser v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). In establishing the

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causal connection, a plaintiff need not prove that his protected activity was the sole factor in

motivating the employers decision. Gee, 289 F.3d at 345;Rubinstein v. Admrs of Tulane Educ.

Fund, 218 F.3d 392, 403 (5th Cir. 2000); Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir.

1996). Rather, a causal link is established when the evidence demonstrates that the employers

decision to take adverse action was based in part on knowledge of the employees protected activity.

See Ackel v. Natl Commcns, Inc., 339 F.3d 376, 385-86 (5th Cir. 2003); Sherrod v. Am. Airlines,

Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). In other words, a plaintiff must show that the

decisionmaker who committed the adverse employment action was aware of the plaintiffs protected

activity. Manning v. Cheron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003);see also Ackel, 339

F.3d at 385-86. If an employer is unaware of an employees protected conduct at the time of the

adverse employment action, the employer plainly could not have retaliated against the employee

based on that conduct. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th

Cir. 1999).

Nevertheless, if the employee serves as the cats paw of the decision maker, the causal

connection remains intact. Gee, 289 F.3d at 346;Long, 88 F.3d at 307. To invoke the cats paw

theoryor rubber stamp theorya plaintiff must establish (1) that an employee exhibited retaliatory

animus and (2) that the same employee possessed leverage, or exerted influence, over the titular

decision maker. Roberson v. Alltell Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004); Gee, 289 F.3d

at 346. If both elements are established, it is proper to impute the retaliatory motive to the formal

decision maker. See Gee, 289 F.3d at 346;Roberson, 373 F.3d at 653. However, if the decision

maker conducted an independent investigation rather than rubberstamping or relying on the

recommendation of the employee with the retaliatory animus, any causal link between the alleged

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retaliatory intent and the adverse employment action is broken. Mato v. Baldauf, 267 F.3d 444, 450

(5th Cir. 2001);Long, 88 F.3d at 307;Evans v. Tex. Dept Of Transp., 547 F. Supp. 2d 626, 656

(E.D. Tex. 2007).

Specifically, Plaintiff argues there is sufficient evidence in the record that (1) Wong exhibited

a retaliatory animus and (2) Wongs recommendation to include Plaintiff on the RIF list was rubber

stamped all the way up the chain of command. Br. Supp. Pl.s Resp. Oppn Def.s Mot. J. Matter

Law & Mot. New Trial 11-17, ECF No. 119. Defendant responds that there is no evidence in the

record that Wong had a retaliatory animus. Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot.

New Trial 12-14, ECF No. 116. In the event the Court finds there is evidence supporting the jurys

finding that Wong had a retaliatory motive, Defendant argues that it is entitled to judgment because

Wong never exerted any influence or leverage over the Citys ultimate decision to include Plaintiffs

position on the RIF list. Id. at 13 n.3; Def.s Reply Supp. Renewed Mot. J. Matter Law & Mot. New

Trial 6-7, ECF No. 121.

Having already found there was sufficient evidence in the record of Wongs retaliatory

animus towards Plaintiff, the Court turns to the second element of Plaintiffs cats paw theory:

whether Wong exerted influence or leverage over Defendants decision to include Plaintiff on the

RIF list. See supra Part IV.A.2. Despite Plaintiffs insistence to the contrary, there is simply no

evidence in the trial record supporting a reasonable inference that Wongs recommendation was

rubber stamped up the chain of command. Thus, no reasonable jury could have imputed Wongs

retaliatory animus to City Manager Mary Suhm, who presented the plan to the City Councilthe

ultimate decision maker.

The evidence Plaintiff relies on to establish cats paw liability is as follows. Wong

recommended that four senior electronic technicians be included in the RIF. Id. Vol. 2, at 115:4-8,

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16-20, 126:2-6. Wong knew that Plaintiff was one of the four senior electronic technicians in his

recommendation. Id. at 118:1-11; id. Vol. 3, at 4:15-25, 106:2-9, ECF No. 110. The City ultimately

decided to include the four senior electronic technicians together with hundreds of other positions

on the RIF list. Id. Vol. 3, at 5:6-9. Plaintiff was effectively laid off in October 2009. Jury Charge

4, ECF No. 105. Based on this evidence, Plaintiff argues that because the City decided to eliminate

four senior electronic technicians, the City necessarily rubber stamped Wongs recommendation

all the way up the chain of command.

As an initial matter, the Court notes that it may not extrapolate simply from [Wongs]

involvement in the process that Wong was responsible for the Citys decision to include Plaintiffs

position on the RIF list. See Mato, 267 F.3d at 451. Instead, taking the trial record in the light most

favorable to Plaintiff, the Court must determine whether Wong exerted influence or leverage over

the Citys decision to place Plaintiffs position on the RIF list.

Mindful of this standard, the Court turns to Plaintiffs theory. Plaintiffs theory is that

Wongs direct supervisor, Elizabeth Ramirez (Ramirez), rubber stamped Wongs

recommendation to include Plaintiffs position on the RIF list. The Court finds there is legally

insufficient evidence to support this theory. Ramirezs uncontradicted testimony is that before

submitting the proposal she met with her own staff and received input from everyone, including

the other managers familiar with Wongs group, as to which materials and positions should be cut.

Trial R., Vol. 4, at 26:17-25, 27:11-20. Indeed, Ramirez stated that Wongs recommendation was

not the one she implemented. Id. at 12:10-13. Uncontradicted evidence also establishes that the

proposal changed many times, and Wong was not involved in any of these subsequent discussions

or decisions. Id. at 12:17-13:2, 13:3-4, ECF No. 111. Given this uncontradicted evidence, there is

legally insufficient evidence to conclude that Wong exerted leverage or influence over the decision

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to include Plaintiffs position on the RIF list. See Mato, 267 F.3d at 450 (stating that the causal

chain breaks when an official conducts his own independent investigation in the course of reaching

his decision);Evans v. Tex. Dept of Trans., 547 F. Supp. 2d 626, 655 (E.D. Tex. 2007) (finding that

although the employees complaint triggered the investigation, there was no evidence that the

employee exerted influence or leverage over the final decision).

Even though the chain of causation was broken at Ramirezs level, the Court finds that the

chain was also conclusively broken beyond Ramirezs level. City Manager Mary Suhm explained

that there are a number of levels between her and Wong, and that at each level the employee making

the recommendation must be able to discuss what [his] decision-making process is and be able to

persuade management on up the chain [hes] made a sound decision. Trial R., Vol. 4, at 143:6-13,

144:4-15. She further stated that the supervisor or manager has to explain what hes doing and why

he is doing it and why its a suitable reduction to serve the citizens. Id. at 144:7-8. Indeed, when

making a decision about what positions to include in the RIF, Suhm does not ask about whether [the

employee] filed a grievance or not because [she] cant take action against somebody [whos] filed

a grievance. Id. at 146:12-17. Instead, Suhm testified without contradiction that she looks at

whether the service is still needed, how much of it is needed, and what will be done in the services

absence. Id. Ramirez corroborated that at each level there is an independent inquiry into the reasons

behind the decision. See id. at 12:17-13:2, 13:5-17. As it relates to her boss, Ramirez stated

without contradiction that she would have to make sure that [her] director understood [the proposal]

really well so that when he goes to make a presentation to his boss, which is the assistant city

manager, hes got to be able to speak to all the things that [shes] coming up with. Id. at 11:21-

12:9. For this additional reason, the Court finds that the evidence is legally insufficient to establish

that Wong exerted leverage or influence such that his recommendation was rubber stamped up the

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chain of command. Therefore, there is legally insufficient evidence to establish a causal connection

between Plaintiffs protected activityfiling grievances and complaints regarding retaliation and

race discriminationand the inclusion of his position in the RIF.

Accordingly, the Court enters judgment as a matter of law on this ground for Defendant and

DENIES as moot Defendants Motion for New Trial on this ground.6

C. Damages for Past Mental Anguish & Emotional Distress

Finally, Defendant argues that Plaintiff failed to provide legally sufficient evidence to support

the jurys award of $195,000 for past mental anguish and emotional distress. Def.s Br. Support

Renewed Mot. J. Matter Law & Mot. New Trial 18-23, ECF No. 116. Defendant further argues that

such a finding is against the great weight of the evidence. Id. Plaintiff asserts that there is ample

evidence in the record supporting the jurys verdict. Br. Supp. Pl.s Resp. Oppn Def.s Mot. J.

Matter Law & Mot. New Trial 17-22, ECF No. 119.

Courts must review damage awards based on intangible harms with deference because the

harm is subjective and evaluating it depends considerably on the demeanor of witnesses. Giles v.

Gen. Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001). Nevertheless, [t]o be entitled to mental anguish

damages, a plaintiff must show a discernible injury to the victims mental state and submit evidence

regarding the nature and extent of the alleged harm. E.E.O.C. v. WC & M Enters., Inc., 496 F.3d

393, 402 (5th Cir. 2007);see also Vadie v. Miss. State Univ., 218 F.3d 365, 376 (5th Cir. 2000).

Compensable emotional distress may manifest itself as sleeplessness, anxiety, stress, depression,

marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous

breakdown. WC & M Enters., 496 F.3d at 402. A claimants testimony, without more, may

The Courts determination that there was insufficient evidence supporting Plaintiffs cats paw theory of6

liability, obviates the need to defer ruling on whether the Court properly instructed the jury on causation. See Part IV.D.

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support an award of compensatory damages for emotional distress. Id.;see also Migis v. Pearle

Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). Neither conclusory statements that the plaintiff

suffered emotional distress nor the mere fact that a constitutional violation occurred supports an

award of compensatory damages. Brady v. Fort Bend Cnty., 145 F.3d 691, 720 (5th Cir. 1998).

Here, the jury returned a verdict of $195,000 as compensation for Plaintiffs past mental

anguish and emotional distress. See generally Jury Charge, ECF No. 105. The jurys verdict

compensated Plaintiff for both alleged injuries: (1) removal of his lead technician position and (2)

losing his job because of the RIF. See generally id. As noted above, the Court finds that there is

legally insufficient evidence to support the jurys finding that Defendant retaliated against Plaintiff

by including him in the RIF. See supra Part IV.B. Therefore, the Court must determine whether

there is legally sufficient evidence to support a finding that removal of Plaintiffs lead technician

duties caused Plaintiff $195,000 in compensable harm.

In this case, Plaintiff testified that in his final months with the City, he suffered stress, major

anxiety, . . . was depressed, . . . had posttraumatic stress disorder, and was feeling terrible. Trial

R., Vol. 1, at 167:22-25, ECF No. 108. Plaintiff also stated that for the first time he sought help

from a counselor. Id. at 168:10-18, 169:17-20. According to Plaintiff, his counseling started in June

2009 and continued until January 2010, and was done solely for work-related reasons. Id. at

169:2-11, 17-23. Additionally, Plaintiff testified that he saw his doctor to deal with his mental

anguish. Id. at 169:24-170:19. Plaintiff also said, and receipts corroborate, that Plaintiffs doctor

prescribed Plaintiff medications to deal with his mental anguish. Id. at 170:9-19; Pl.s Ex. 76; id.

Ex. 77. Finally, Plaintiff testified that because of this stress[,] anxiety, [and] depression he took

medical leave. Trial Record, Vol. 1, at 170:25-171:15. Based on the foregoing, there is evidence in

the record from which a reasonable jury could conclude that Defendants actions caused Plaintiff

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mental anguish and emotional distress.

However, it is unclear to what extent the mental anguish and emotional distress flowed from

the removal of Plaintiffs lead technician duties, especially since the jurys verdict compensated

Plaintiff for both removal of his lead technician duties and the loss of his job as part of the RIF. See

generally Jury Charge, ECF No. 105. While compensating Plaintiff $195,000 solely for removal of

his lead technician duties is excessive, the Court finds that it is not appropriate to enter judgment as

a matter of law that Plaintiff suffered no compensable mental anguish damages. See Salinas v.

ONeill, 286 F.3d 827 (5th Cir. 2002) (finding jurys award of $300,000 was clearly excessive and

granting remittitur). Instead, pursuant to Rule 59, the Court finds the more appropriate action is to

order a partial new trial on the limited issue of what mental anguish and emotional distress damages,

if any, Plaintiff suffered because of the removal of his lead technician duties. Accordingly, as to this

ground, Defendants Renewed Motion for Judgment as a Matter of Law is DENIED and

Defendants Motion for New Trial is GRANTED.

D. Jury Charge

Defendant asserts that the Court improperly instructed the jury, resulting in an improper

verdict and prejudicial error. Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 23-

25, ECF No. 116. According to Defendant, the Court improperly presented a motivating factor

instruction to the jury on Plaintiffs Title VII retaliation claim and failed to include a critical part

for the definition of adverse employment action. Id. The Court addresses each instruction in turn.7

The district court has wide latitude in instructing the jury on the law and thus technical

imperfections are ignored. Davis v. Ector Cnty. Tex., 40 F.3d 777, 786 (5th Cir. 1994); Fed.

Defendant only moves for a new trial on the ground that the Court improperly instructed the jury. See Def.s7

Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial 23-25, ECF No. 116; Def.s Reply Supp. Renewed Mot. J.Matter Law & Mot. New Trial 9-10, ECF No. 121.

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Deposit Ins. Corp. v. Wheat, 970 F.2d 124, 130 (5th Cir. 1992). [A] verdict based judgment will

be reversed because of an erroneous instruction only when the charge as a whole leaves us with

substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.

Mayo v. Borden, Inc., 784 F.2d 671, 672 (5th Cir.1986) (citations omitted);see also Brochtrup v.

Mercury Marine, 426 Fed. Appx 335, 340 (5th Cir. 2011); Taita Chem. Co., Ltd. V. Westlake

Styrene, LP, 351 F.3d 663 (5th Cir. 2003).

The Court first turns to Defendants assertion that the Court erred by presenting the jury with

a motivating factor instruction. Under Fifth Circuit precedent, a motivating factor jury instruction

is proper in a Title VII retaliation case. See Smith v. Xerox Corp., 602 F.3d 320, 329-30 (5th Cir.

2010);see also Carter v. Luminant Power Servs. Co., No. 3:10-CV-1486-L, 2012 WL 1810185, at

*2-3 (N.D. Tex. May 18, 2012) (submitting a mixed-motive instruction to the jury). The Supreme

Court has not overruled the Fifth Circuit on this issue. However, the Supreme Court will likely

address this issue inNassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448 (5 th Cir. 2012), cert.

granted, No. 12-484, 2013 WL 203552 (Jan. 18, 2013). Since the Court has ordered a new trial, it

defers ruling on whether it erred by giving the jury a motivating factor instruction instead of a but

for instruction until the Supreme Courts decision inNassar.

The Court next turns to Defendants assertion that the Court erred by omitting a critical part

of the adverse employment action definition. Here, the Court instructed the jury that:

Adverse employment is not confined to acts or harms that occur at the

workplace. It is an action that alters the employees terms, conditions, or

privileges of employment, or otherwise affects the status as an employee. It

covers those employer actions that could well dissuade a reasonable worker frommaking or supporting a charge of discrimination.

Jury Charge 4-5, ECF No. 105. According to Defendant, a complete jury instruction would have

added the following to the definition of adverse employment action: Inconvenience, personality

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conflicts in the workplace, and petty slights or minor annoyances that all employees experience are

not materially adverse actions. Def.s Br. Supp. Renewed Mot. J. Matter Law & Mot. New Trial

23, ECF No. 116.

The Court finds it did not commit prejudicial error. The Courts jury instruction necessarily

covers Defendants additional definition of adverse employment action. In other words, a

reasonable worker would not be dissuaded from making a charge of discrimination if he found an

employers action to be petty, inconvenient, a minor annoyance, or the result of a personality

conflict. Including the requested language in the charge would therefore be superfluous. Here, the

jury found that the threat of losing a lead technician position could well dissuade a reasonable

worker from making or supporting a charge of discrimination. See Jury Charge 4-5, 8, ECF No.

105. The Court finds no reason to disturb this finding. Indeed, the Courts instruction tracks the

Fifth Circuits pattern jury charge, which was updated three years afterBurlington Northern & Santa

Fe Ry. Co. v. White, 548 U.S. 53 (2006)the case on which Defendant relies. Based on the

foregoing, as to this ground, Defendants Motion for New Trial is DENIED.

V. CONCLUSION

Consistent with the foregoing, the Court GRANTS Defendants Renewed Motion for

Judgment as a Matter of Law (ECF No. 115) on the issue of whether there is a causal connection

between Plaintiffs protected activities and the fact his position was included in the RIF. The Court

DENIES Defendants Renewed Motion for Judgment as a Matter of Law (ECF No. 115) on all other

grounds.

The Court GRANTS Defendants Motion for New Trial (ECF No. 115) on the issue of

whether Plaintiff suffered damages for past mental anguish and emotional distress because of the

removal of his lead technician position. The Court DENIES Defendants Motion for New Trial

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(ECF No. 115)on all other grounds.

Accordingly, the Court ORDERS a partial new trial on the limited issue of what mental

anguish and emotional distress damages, if any, Plaintiff suffered because of the removal of his lead

technician position. This trial may also include the merits of Plaintiffs claim that Defendant

retaliated against him by removing his lead technician duties, depending on the outcome ofNassar.

The parties are therefore ORDERED to confer and file, by April 8, 2013, a list of dates when such

trial can be held.

Finally, the Court DENIES as moot Plaintiffs Motion for Entry of Judgment (ECF No.

114).

SO ORDERED on this 25th day ofMarch, 2013.

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_____________________________________

Reed OConnor

UNITED STATES DISTRICT JUDGE

O'Connor Ruling in Bruton Stephens Case

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