363 F.3d 568 | 5th Cir. | 2004
Lead Opinion
Loretha Kanida appeals from a jury verdict in favor of her employers, defendants Gulf Coast Medical Personnel LP (“GCMP”) and Nursefinders Inc., which found that the defendants did not retaliate against Kanida in violation of the Fair Labor Standards Act. 29 U.S.C. § 215(a)(3). Kanida claims that she is entitled to a new trial because the district court refused to include a requested permissive pretext instruction in the jury charge, and also because of two additional jury instructions she requested that the district court refused to give. Kanida also claims that two jury instructions the district court actually gave were improper and require a new trial. Additionally, Ka-nida challenges the district court’s eviden-tiary rulings limiting or excluding the testimony of five witnesses. Finally, Kanida claims that the district court erred when it concluded that a victim of retaliation cannot recover compensatory and punitive damages under the FLSA. For the following reasons, we affirm the district court.
I
In August 1999, Kanida contacted Mary Beth Parks, the founder and owner of Gulf Coast Medical Personnel (“GCMP”), and requested a meeting. At this meeting Ka-nida claimed that GCMP owed her unpaid overtime compensation. Parks collected Kanida’s employment records, calculated the amount that GCMP owed, and offered payment to Kanida. Kanida refused GCMP’s offers, and demanded payment of an amount significantly higher than Parks calculated. Kanida filed a complaint regarding the unpaid overtime compensation with the Department of Labor (“DOL”), which commenced an investigation in November 1999. While this investigation was ongoing, Parks finalized the sale of GCMP to Nursefinders. Parks continued to work for Nursefinders, and Nursefinders assumed any potential liability associated with Kanida’s claims. At the conclusion of the DOL’s investigation, Nursefinders and Parks attended a conference with the DOL where Parks acknowledged liability for the unpaid overtime. Parks subsequently offered payment of unpaid overtime compensation to all of the affected employees as determined by the DOL. Kanida again declined to accept payment of this amount and retained counsel to pursue the matter. Kanida filed this lawsuit in May 2000, but continued working for Nursefinders until January 2001 when she left voluntarily.
Kanida claimed that Parks, and consequently GCMP and Nursefinders, retaliated against her for filing a complaint with the DOL in violation of the Fair Labor Standards Act (“FLSA”). To support her retaliation claim, Kanida produced evidence to show that subsequent to her filing of the DOL claim she was subject to adverse employment actions.
II
Kanida argues that the district court abused its discretion by refusing to include the permissive pretext instruction she requested in its jury charge.
Ratliff considered a permissive pretext instruction within the context of an age discrimination claim under the Age Discrimination in Employment Act. Id. at 359. As part of his claim, the plaintiff in Ratliff presented evidence to show that the non-discriminatory reasons the employer gave for its actions were actually a pretext for age discrimination. Id. This plaintiff requested a permissive pretext instruction, similar to the one at issue here, and the Ratliff district court also refused to include this instruction in its jury charge. Id. The district court in Ratliff also chose to instruct the jury regarding the plaintiffs burden in that case by using a “pretext plus” jury instruction.
While Reeves clarified the legal burden of production a plaintiff must meet to present their case to a jury, Reeves, 530 U.S. at 146-47, 120 S.Ct. at 2108, it did not address whether a district court must give a permissive pretext jury instruction. Many of our sister circuits do not understand Reeves to require that instruction. See Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 789 (8th Cir.2001) (failure to include instruction on pretext is not reversible error where the given instructions correctly stated the law because the jury was still free to consider any evidence of pretext); Palmer v. Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969, 974-75 (11th Cir.2000) (no reversible error from refusal to include permissive pretext instruction when the rest of the jury instructions correctly stated the law); Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir.2000) (finding that although an instruction that the jury can infer discrimination from evidence of pretext is permitted, “we doubt that such an explanation is compulsory, even if properly requested”). We recognize, however, that other circuits agree with our decision in Ratliff. See Ratliff, 256 F.3d at 361 n. 7 (citing Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir.1998) (requiring that jurors receive a permissive pretext instruction); Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir.1994) (same)); Townsend v. Lumbermens Mut. Cas. Co. 294 F.3d 1232, 1241 (10th Cir.2002) (requiring permissive pretext instruction when “a rational finder of fact could reasonably find the defendant’s explanation false”).
Despite this concern, “it is the firm rule of this circuit that one panel may not overrule the decisions of another.” United States v. Taylor, 933 F.2d 307, 313 (5th Cir.1991). Therefore, we are required to follow Ratliff. Although Ratliff’s decision that the district court erred by refusing to give a permissive pretext instruction in employment discrimination cases was not necessary to reach its decision to reverse the district court, see Ratliff, 256 F.3d at 364 (holding that the “pretext plus” instruction requires reversal), this decision is still binding precedent upon this panel as an alternative holding. See, e.g., United States v. Adamson, 665. F.2d 649, 656 n. 19 (5th Cir.1982) (holding that decisions on issues that were fully presented and litigated, and likely to arise on retrial, are not dictum and are still binding precedent even if the decision was not necessary to support the ultimate ruling, such as an alternative holding).
We are concerned that our permissive pretext jury instruction holding in Ratliff unnecessarily expands the scope of the Reeves opinion for four reasons. First, and most importantly, Reeves was not a jury case. In Reeves, the Supreme Court reviewed the evidence a plaintiff must pro-
Second, Reeves did not change what a plaintiff must ultimately prove to prevail on their claim — that the adverse employment action was motivated by actual discriminatory intent. Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“In other words, ‘[i]t is not enough to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.’ ”) (emphasis in original) (internal citations
Third, the pretext inference described in Reeves is merely a permissive and not a mandatory inferencé. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (noting that “there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory”). The Fifth Circuit pattern jury instruction on the consideration of evidence permits jurors to draw the reasonable inferences they feel the evidence justifies. See U.S. Fifth CiRcuit Dist. Judges AssoC., PatteRn JuRY INSTRUCTIONS: ClVIL CaSES-CoNSIDERATION OF THE EVIDENCE § 2.18 (1999). There are numerous permitted inferences, and only requiring an instruction regarding the permissive pretext inference risks confusing the jury regarding the ultimate issue a plaintiff must prove. Cf. Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994) (“[A] judge need not deliver instructions describing all valid legal principles. Especially not when the principle in question describes a permissible, but not an obligatory, inference.”). To prevail, a plaintiff must show actual discriminatory intent; successfully rebutting the defendant’s asserted justifications may not itself be sufficient. See Reeves, 530 U.S. at 141, 120 S.Ct. 2097 (“When a plaintiff alleges disparate treatment, liability depends on whether the protected trait ... actually motivated the employer’s decision.”) (citations omitted). Diverting the jurors’ attention -in this manner risks understating the complexity of their inquiry, and potentially places the burden of persuasion upon employers to show that the explanations they offer are true rather than requiring plaintiffs to prove that their employers acted with inappropriate intent. Cf. Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1246 (10th Cir.2002) (Brorby, J., dissenting) (“[I]n some instances, a facially neutral permissive inference instruction might draw unwarranted attention to a small portion of the evidence presented at trial or mislead the jury as to the applicable law.”).
Fourth, and finally, in Ratliff we based our holding that permissive pretext instructions are required in part on the concern that “[wjithout a charge on pretext, the course of the jury’s deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that inferences of discrimination may be drawn from the evidence establishing plaintiffs prima facie case and the pretextual nature of the employer’s proffered reasons for its actions,” and concluded that “[i]t does not denigrate the intelligence of our jurors to suggest that they need some instruction in the permissibility of drawing that inference.” Ratliff, 256 F.3d at 361 n. 7 (quoting Smith v. Borough of Wilkinsburg, 147
Ill
As discussed above, the Reeves opinion, on which Ratliff based its permissive pretext holding, elaborates upon the requirements of the McDonnell Douglas burden shifting analysis. Retaliation claims under the FLSA are also subject to the McDonnell Douglas analytical framework. See Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 876-78 (2d Cir.1988) (holding that McDonnell Douglas pretext analysis applies to FLSA claims); Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir.1997) (“In analyzing FLSA retaliation claims, we apply the shifting burden of proof scheme initially articulated in McDonnell Douglas.”) (citations omitted). Thus, Ratliff applies as equally to FLSA cases as it does to employment discrimination cases. Kanida is correct that the district court was required to give her requested permissive pretext instruction, and erred by not doing so.
GCMP claims that Ratliff is distinguishable from this case on its facts. In Ratliff the district court chose to instruct the jury on McDonnell Douglas burden shifting. See Ratliff, 256 F.3d at 359, 361-62. GCMP thus claims that Ratliff only requires permissive pretext instructions in cases where the district court has instructed the jury as to McDonnell Douglas burden shifting, and that in cases where no such instruction was given, the permissive pretext instruction is not required. We find nothing in Ratliff suggesting such a
Although in Ratliff we held that it was error for a district court to refuse to give a requested permissive pretext instruction, we did not consider whether, based upon the facts of that case, -the failure to give the permissive pretext instruction rose to the level of reversible error. Ratliff, 256 F.3d at 360-61, 364. This was because the improper “pretext plus” instruction provided reversible error and it was unnecessary to consider whether not giving the permissive pretext instruction constituted reversible error. Id. at 361-62, 364. In contrast, in this case we must determine whether the district court’s refusal to give the requested permissive pretext instruction is reversible error.
“This Court reviews a district court’s refusal to provide a requested jury instruction for abuse of discretion.” United States v. McClatchy, 249 F.3d 348, 356 (5th Cir.2001) (citations omitted). Recognizing that district courts have substantial latitude in crafting jury instructions, the district court’s refusal to give a requested jury instruction constitutes reversible error “only if the instruction 1) was a substantially correct statement of law, 2) was not substantially covered in the charge as a whole, and 3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the [party’s] ability to present, a given [claim].” Id.
,-As our previous discussion indicates, the permissive pretext instruction Kanida requested is a correct statement of law. In addition, based upon our understanding of Ratliff, we find that the requested permissive pretext instruction was not substantially covered in the charge as a whole. The instruction on inference the district court gave in this case was a general inference instruction.
Other than its failure to-give Kanida’s requested permissive pretext instruction,
IV
Kanida claims that the district court abused its discretion by refusing to include in the jury charge two additional instructions she requested. These claims are reviewed under the same standard as the permissive pretext instruction above. McClatchy, 249 F.3d at 356. First, Kanida claims the district court’s refusal to include a vicarious liability instruction is reversible error.
GCMP’s only defense was that the actions its employees took regarding Kanida were not retaliatory. It never disputed the issue of vicarious liability. Further, Kanida points to no evidence in the record suggesting that vicarious liability was ever an issue at trial. In the jury charge conference, defendants indicated that they believed that this undisputed issue was adequately addressed by the general circumstantial evidence and inference instructions and the district judge agreed. Even, assuming their belief was incorrect, if further clarification or emphasis of an employer’s responsibility for the actions of its employees was necessary, nothing prevented Kanida from highlighting this issue in her argument to the jury. This instruction did not concern a disputed issue at trial and the jury was adequately instructed on the law governing retaliation,
Second, Kanida claims the district court erred in refusing to include a “taint” instruction.
Kanida claims two instructions the district court chose to include in the jury charge are also reversible error. “Challenges to jury instructions are reviewed to determine whether, the court’s charge, as a whole is a correct statement of the law and clearly instructs jurors on the legal principles at issue.” Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 404 (5th Cir.2000). First, Kanida claims the “but for” causation standard the district court used as the definition of a motivating factor is reversible error because it is the wrong legal standard.
Second, Kanida claims on appeal that including a business judgment instruction was reversible error because it undermined her efforts to show that GCMP’s stated reasons were pretext.
V
Kanida challenges five of the district court’s evidentiary rulings excluding certain testimony. “We apply an abuse of discretion standard when reviewing evidentiary rulings. If an abuse of discretion is found, the harmless error doctrine is applied. Thus, evidentiary rulings are affirmed unless the district court abused its discretion and a substantial right of the complaining party was affected.” Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir.2002) (citations omitted).
First, Kanida challenges the district court’s decision to exclude the testimony of Judi Coates. Kanida claims that Coates was going to testify that she left her employment with GCMP, but returned several months later to claim unpaid overtime compensation from GCMP. Coates would further testify that GCMP entered into a settlement agreement with her regarding this compensation, but that Parks became angry with Coates and threatened her life during the process of reaching the settlement agreement. The district judge excluded this testimony for two reasons 1) it was impermissible character evidence because it was being introduced to show that Parks was the type of person who got angry, and 2) that the testimony was not relevant because the way Parks behaved towards Coates was not necessarily relevant to Parks’ motive regarding any employment action taken with respect to Ka-nida.
After reviewing the record, we cannot say the district court abused its discretion by excluding this testimony. Kanida is correct that comments are admissible to show pretext if they 1) show retaliatory animus and 2) were made by the individual primarily responsible for the retaliatory conduct. See Laxton v. Gap, Inc., 333 F.3d 572, 583-84 (5th Cir.2003); Russell v. McKinney Hosp. Venture, 235 F.3d 219,
Second, Kanida challenges the exclusion of Paulette Bennett’s testimony. The district court excluded Bennett’s testimony because much of it consisted of impermissible hearsay evidence. Fed. R.Evid. 802. Specifically, it found that Bennett’s testimony regarding a conversation she overheard between Kanida and two other employees was hearsay. Fed. R.Evid. 801. On appeal, Kanida argues this testimony was relevant and probative of her claim. Specifically, it would corroborate her testimony and help her establish pretext. Kanida did not, however, challenge the district court’s ruling that this testimony was hearsay. This argument is waived. See Trico Marine Assets Inc. v. Diamond B Marine Srvs. Inc., 332 F.3d 779, 790 n. 6 (5th Cir.2003) (“Issues not raised or argued in the brief of the appellant may be considered waived and thus will not be noticed or entertained by the court of appeals.”) (citation omitted, emphasis in original).
Third, Kanida challenges the district court’s ruling limiting her cross-examination of Cheryl Oliver.
Kanida’s final two evidentiary challenges concern the district court’s refusal to allow two witnesses to testify on rebuttal, Rita Darjean and Kanida herself. Darjean was listed as a witness for Kanida’s case in chief, but was not called. Kanida stated that it was necessary to call Darjean in rebuttal because the court refused to allow testimony from other witnesses during her case in chief. The purpose of Kanida’s rebuttal testimony was “to refute everything [the defendants] say.” The district judge refused to allow either person to testify on rebuttal because they both were available to testify during the plaintiffs case in chief and neither party was going to testify regarding evidence previously unavailable. See Tramonte v. Fibreboard, Corp., 947 F.2d 762, 764 (5th Cir.1991) (“The trial court generally admits rebuttal evidence either to counter facts presented in the defendant’s case in chief, or to rebut evidence unavailable earlier through no fault of the plaintiff.”) (citations omitted). The district court did not abuse its discretion in excluding this rebuttal testimony.
VI
For the reasons discussed above, we AFFIRM the district court’s amended final judgment awarding Kanida overtime pay in the amount stipulated to by the parties before trial. Therefore, we need not address plaintiffs claim concerning the availability of compensatory and punitive damages under the FLSA and DISMISS this claim as moot.
. Kanida presented evidence that GCMP gave her written reprimands associated with her work, gave her negative employment evaluations, decreased her salary, refused to assign her to light duty work after she was involved in a non-work related car accident, and re
.GCMP presented evidence to show that the written reprimand was given because Kanida failed to inform her immediate supervisor of a change to the prescribed medication for her patient. GCMP claimed that Kanida’s negative employment evaluation was based upon the written reprimand, complaints made by two nurses, both orally to Parks and in writing, that Kanida was harassing them about their overtime compensation claims, and a report by another nurse, Cheryl Oliver, to her supervisor that Kanida had approached her to solicit a GCMP patient away from the company. GCMP presented evidence that Kanida's salary was reduced because her job responsibilities had decreased, and that her salary was not reduced earlier due to a clerical error. GCMP claimed that Kanida was not provided with as many light duty assignments as she requested because no assignments fitting her needs were available at that time. Finally, GCMP presented evidence that the reduction in Kanida's hours was the result of her own request and not done in retaliation.
. The permissive pretext instruction Kanida requested was: "If the plaintiff disproves the reasons offered by Defendants by a preponderance of the evidence, you may presume that the employer was motivated by retaliation.”
. The "pretext plus” standard "requires a plaintiff not only to disprove an employer's proffered reasons for the discrimination but also to introduce additional evidence of discrimination” while under the "permissive pretext” standard "if the plaintiff establishes that the [employer's] reasons are pretextual, the trier of fact is permitted, but not required, to enter judgment for the plaintiff.” Ratliff, 256 F.3d at 361 (citations omitted).
. In a McDonnell Douglas analysis, the plaintiff must first prove their prima facie case, which creates a presumption that the employer acted with discriminatory intent. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. The employer can rebut this presumption by producing legitimate nondiscriminatory reasons for their actions. Id., 120 S.Ct. 2097. Once the employer does this, the presumption drops out of the case, and the only remaining question is whether the defendant intentionally discriminated against the plaintiff. Id. at 142-43, 120 S.Ct. 2097. The plaintiff then has the opportunity to present evidence showing that the employer's proffered explanations were a mere pretext for discrimination and not worthy of credence. Id., 120 S.Ct. 2097. However, "although the evidentiary burdens shift back and forth under this framework" the plaintiff always bears the burden of "persuading the trier of fact that the defendant intentionally discriminated" against them. Id. at 143, 120 S.Ct. 2097.
. Indeed, although Ratliff did not consider this fact, every Fifth Circuit precedent cited in Ratliff applied Reeves within the context of a district court’s grant of summary judgment or judgment as a matter of law and not within the context of jury instructions. See Ratliff, 256 F.3d at 360-61 (citing Blow v. City of San Antonio, 236 F.3d 293, 297 (5th Cir.2001) (applying Reeves in a summary judgment case); Evans v. City of Bishop, 238 F.3d 586, 591 (5th Cir.2000) (summary judgment case); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir.2000) (judgment as a matter of law); Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir.2000) (summary judgment case)).
. The Supreme Court has found in certain circumstances that argument to the jury by counsel cannot replace a jury instruction by the district court. See, e.g., Carter v. Kentucky, 450 U.S. 288, 304, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) ("The other trial instructions and arguments of counsel that the petitioner's jurors heard at the trial of this case were no substitute for the explicit instruction that the petitioner's lawyer requested.”); Taylor v. Kentucky, 436 U.S. 478, 488-89, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) (finding that the mere fact that defense counsel argued the presumption of innocence to the jury in both opening and closing argument could not compensate for the failure of the court to include a specific instruction on this issue). However, in other circumstances the Court has found argument by counsel sufficient. See Simmons v. South Carolina, 512 U.S. 154, 169, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (finding that in death penalty cases where future dangerousness is an issue, "due process plainly requires that [the defendant] be allowed to bring [the possibility of imprisonment without parole] to the jury's attention by way of argument by defense counsel or an instruction from the court.”)(emphasis added). Carter and Taylor are distinguishable from this case because they involved mandatory and not permissive presumptions. Carter, 450 U.S. at 294, 101 S.Ct. 1112 (criminal defendant requested instruction that he was not compelled to testify and that no inference of guilt can result from the fact that he refused to do so); Taylor, 436 U.S. at 480-81, 98 S.Ct. 1930, 56 L.Ed.2d 468 (criminal defendant requested a jury instruction regarding the presumption of innocence). Therefore, argument to the jury by plaintiff's counsel regarding the permissible inference is sufficient when the jury is correctly instructed on the ultimate burden the plaintiff bears.
. The general inference instruction given in this case was very similar to the pattern jury instructions in this Circuit. The actual instruction given was:
You must consider only the evidence in the case, but you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. - In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case.... There are two types of evidence you may consider. One is direct evidence, such as testimony of an eyewitness. The other is indirect or circumstantial evidence, the proof of circumstances that tend to prove or disprove the existence or nonexistence of certain other facts. The law makes no distinction between direct and circumstantial evidence, but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial.
Cf. U.S. Fifth Circuit Dist. Judges Assoc., Pattern Jury Instructions: Civil Cases-ConsiderATION OF THE EVIDENCE § 2.18 (1999).
. The jury instruction Kanida proposed stated:
The Defendants in this case are a corporation and partnership. A corporation and partnership are legal entities, or persons, and may be found guilty of retaliation. A corporation and/or partnership, may only act through natural persons, who are known as its agents. In general, any agent or representative of a corporation may bind a governmental body by his or her acts, declarations, or omissions.
. A ''taint'1 instruction informs the jury that the improper motive of one member of a corporation can taint the actions taken by another employee in certain situations. See Ratliff, 256 F.3d at 362-63; see also Laxton v. Gap, Inc., 333 F.3d 572, 584 (5th Cir.2003) (describing situation where discriminatory animus of an employee can be imputed to actions of other employees).
. The full text of the instruction Kanida requested was: "Plaintiff does not have to establish a direct causal connection in a retaliation claim.”
.The specific instruction in this case was:
To prevail on this claim, Ms. Kanida must prove by a preponderance of the evidence that these alleged adverse employment actions occurred and that they would not have occurred "but for” her filing of the complaint with the Department of Labor. In other words, Ms. Kanida must prove that her filing with the Department of Labor was a motivating factor in the alleged adverse employment actions.
. The business judgment instruction given in this case was:
You may not return a verdict for Ms. Kani-da just because you might disagree with Gulf Coast's or Nursefinders' actions or believe them to be harsh or unreasonable. Under the law, employers are entitled to make employment decisions for a good reason, for a bad reason, or for no reason at all, so long as the decision is not motivated by unlawful retaliation. You should not second-guess Gulf Coast or Nursefinders' decision or substitute your own judgment for theirs.
. Cheryl Oliver was the nurse who reported to Parks that Kanida approached her about soliciting a GCMP patient away from the company, one of the reasons GCMP gave to justify the negative employment evaluation Kanida received. See supra note 2.
Concurrence Opinion
specially concurring:
I concur in the majority opinion in most respects. In particular, I agree that, under Ratliff v. City of Gainesville, 256 F.3d 355, 360-61 (5th Cir.2001), the district court erred by refusing to instruct the jury on permissive pretext. I also agree that, because that error was harmless on the facts of this case, we must affirm the judgment of the district court.
However, I do not join the majority opinion’s criticism of Ratliff or its call for en banc review of that decision. First, I am not convinced that Ratliff’s reasoning is incorrect. More importantly, because we have determined that the error in this case was harmless, the majority’s critique of Ratliff is unnecessary. For the same reason, this case is not a suitable vehicle for us to reconsider Ratliff en banc. I would not urge en banc review and the expenditure of time and resources that review would entail.