*2 DENNIS, Facility Support KING, rector of New Orleans Before JOLLY and reorganization. Judges. Center Circuit area; prepared security management An internal document Swanson’s two office, 24, 1988, regional specialists dated out- subsequently June left the New Orleans office, changes lined the to the New Orleans Facility Support By entirely. Center separate and identified “branches” of clerk, four supervised only Facility Support new Es- Center: Real and received occasional secretarial assistance *3 tate, Construction, Contracts, Design and secretary from Moore’s part-time and a stu- Safety. Property Management Real and and dent intern. vacancy announcement to which Swan- 1990, January In submitted a let- replied opening son announced the for the request ter for transfer to Earl Esch- Property Management head the Real bacher; Esehbacher was the Assistant Re- Safety branch. Moore hired Swanson for gional Administrator Fort and he position, believing at time that Swan- superior was Moore’s direct at the time. son would be a branch chief and that the new developed indicated he had Facility Support Center offer its asthma, suffering, severe his health was oppor- career branch advancement unhappy he was that his a branch status as tunities. chief had been eliminated. stated Swanson, to or Unknown either Moore that he felt he been as to had misled however, labeling the June 1988 document possibilities in advancement the New Orleans department Swanson’s a “branch” was incor- position, stating “bought that he this scenar- document, A September rect. second dated hook, io, letter, line and In the sinker.” 1988, 7, longer position no listed Swanson’s requested that he be considered for Although as the head of a branch. a transfer the Fort Worth or Dallas area. formally son’s “branch” had been eliminated Following change status, his Swanson’s Orleans, even before he arrived in New working relationship with Moore and his co- employees Moore and the other New Orleans rapidly workers deteriorated. Sometime in did realize the error until a December early sign-out a Moore established inspection, point at which Moore was applied board that to Swanson and em- told to designation eliminate the branch chief ployees supervised. review, In his March position. from Swanson’s rating received an overall of “3” out original description posi- of Swanson’s rating of a maximum A of five. “3” directly super- tion indicated that he would “fully satisfactory,” step but was a down many employees: vise as as five other a “4” from the had received the building management specialist, a computer previous year; sign Swanson refused to programmer, physical security two special- review, although employee signature line ists, and one clerk. Swanson never agreement did not rating. indicate with the directly supervised computer programmer; May In Swanson sent a memoran- position Moore testified that this was incor- Jones, dum building to Jimmie a GSA man- rectly listed in supervisory de- ager colleague who was a rather than a scription. The New .Orleans office did have a subordinate of Swanson. Swanson’s memo- computer programmer occasionally who ac- per- randum included a demand that Jones cepted inputting assignments document from form some action in accordance with Swan- Swanson, requested because Swanson had specifications: “[t]he bottom line is I typing. assistance with his expect you all stop whining, get your off year, super- For more than a Swanson did your job.” duffs and do damn When Jones positions. vise in the other four Moore, complained responded by However, inspection the December 1989 de- requiring Swanson to submit for Moore’s termined that the workload in Swanson’s correspondence review all Swanson intended building area would not manage- beyond to send the New Orleans office. specialist, ment and Moore was told to trans- Later, fer her the Real Estate branch. In June Swanson filed first his EEO decision at charge the national level alleging removed the racial discrimination. security program entire buildings July, from the overnight Swanson sent package at plaint September was filed and a fourth in Goodspeed at expense to Mr. Robert personal post April office box Fort Swanson submit- Goodspeed’s December. Bowen, Casey Region- Goodspeed grievance former member of was a ted Worth. Committee,” apparently Property Management Affairs al “Black Director Real employ- Safety, concerning performance black GSA an informal committee eval- GSA, but had “recognized” year, again uation which had been a ees “3,” purpose satisfactory” rating within GSA. When “fully no official and com- month, later that expense was discovered plaining of his New Orleans. mistreatment reimburse that Swanson hearing Moore demanded was held on Also expense. Swanson re- When complaints. EEO so, day. suspended for one he was fused do “facility center” con- The entire mid-1990, point in Swanson indi- At some *4 eventually for New office cept the Orleans tape-record to to that he wanted cated Moore in mid-1992. Swanson not the failed phone August, In with- their conversations. only supervised the full manager who never secretly response, a waiting for Swanson out none anticipated; of staff he center’s the personnel-related conversation taped a staffing full branches ever achieved the indi- himself, Moore, Eschbacher, and Ka- among mid-1992, plan. in In the cated the 1988 Wyche, representative. thy personnel a GSA downgraded New Orleans GSA office was 1991, typed a January delivered In Swanson “facility support a from center” to “en- transcript taped the conversation with cov- of reorganization, In hanced field office.” this Rutledge, Mr. Hollis the head of er letter to Estate, Design Real and the the trial, At fur- Region Swanson GSA Seven. Construction, all lost their areas .Contracts initially denied that he had ther conceded chiefs,” posi- status as and Moore’s “branch conversation, and that he had taping the downgraded Property to Offi- tion was Real 1991, January destroyed In tape. the Field of the New Orleans Enhanced Of- cer suspended on recom- son was Eschbacher’s Office, The which Shreveport fice. Field had taping phone the conversation mendation for Facility Sup- under the reported to Moore knowledge or consent of oth- without the directly port concept, reported to Center participants; Eschbacher testified that he er reorganization. Fort Worth after fourteen-day suspension, had recommended a 12, 1992, shortly May after the EEO On days. it five Rutledge reduced but day hearing after Swanson and second a “letter In received Swanson from two weeks’ returned the office had counseling” regarding his fail- from Moore vacation, a reas- received “directed Swanson requesting procedures when ure follow involuntarily him signment” transferred August, Swanson filed an assault leave. reorganization Fort as a Worth security charge alleging that with GSA posi- office. Swanson’s of the New Orleans the ankle had Swanson about Moore kicked “Building in remained Man- tion Fort Worth stepped leg; Moore stated that he and lower grade remained agement Specialist” and his accidentally. The incident on foot “GS-12,” longer position no su- during a confrontation between occurred pervisory. given one week office, in con- Moore and Swanson accept position, which whether to decide cerning report to com- Swanson needed accepted August began on 1992. Swanson December, plete. sent Swanson and re- reassignment protest, under detailing occasions when memorandum ten Worth employed by Fort mained tardy previous over the had been litigation. during pendency this months, approxi- charging two and mately annual leave. two hours of II Throughout period, Swanson contin- court filed district complaints alleging suit federal to file formal EEO ued 15, 1994, alleging race on March discrimina- After his race discrimination retaliation. having for filed EEO complaint, tion and retaliation Swanson filed second June 1990 alleged dis- February complaints. Because Swanson complaint in 1991. A third com- occurring ly illegal. crimination both before and caused the acts found As the deliberated, permitting jury the effective date of amendments the court issued its verdict cases, jury trial Title case was alleged VII on discrimination before Novem- tried before both judge jury 1, 1991; as factfin- the court ber found GSA on all parties magis- agreed ders. The alleged discrimination, including acts of those judge trate to whom ease had been re- jury also submitted to the under relating all ferred would determine issues “continuing” theory. jury, violation The alleged occurring acts of discrimination be- however, found Swanson on four claims: fore the November effective date. tardiness, parking, treatment of denial jury liability would determine and com- reassignment directed and the elimination of pensatory damages on alleged acts oc- supervisory authority. awarded curring after that date. The trial itself was $120,000 compensatory damages. In ac- however, bifurcated, and the heard jury’s finding liability, cordance with the presented all the evidence at trial. 8,May on the court entered $39.42 claim, backpay $43,- on the tardiness trial, argued At had been attorney’s 058.87 costs and fees. Both repeated the victim acts of racial discrimi- judgment Swanson and filed motions nation retaliation at the hands of Moore a matter law. The court denied both superiors. presented and Moore’s appeal motions on June This fol- Mazant, from Debra *5 lowed. clerk; Gaines, physi- Manual one of the two security specialists reported cal who to 1992; Terry until Duplessis, the Ill president; himself; Moore; local union appeals the of court’s denial its mo- Esehbacher; Patterson, and Herbert the judgment for tion as a of matter law on all security officer took who Swanson’s re- 1,1991, occurring acts alleg- November port concerning alleged the assault in Swan- ing that the sup- evidence insufficient to additionally son’s office. presented port by jury. the verdict reached the transcript testimony the of two former GSA sufficient, son contends that the evidence was employees who had contact with Moore and citing both “general of evidence” discrimina- they who stated that had been discriminated against GSA, tion at claiming blacks and also against in a manner similar to Swanson. transcript testimony that the of Lillian An- separate Swanson identified six “adverse Shirley Whittington drews and demonstrated actions,” that either occurred or “con- pattern that Moore followed a of discriminat- 1, 1991, tinuing” after November that he against ing charges. blacks who filed EEO illegal claimed were acts of discrimination: cross-appeals finding the court’s (1) (2) tardiness, treatment of of denial train- liability of no prior to November (3) (4) ing, parking, denial of annual evalua- contending the court’s factual conclusion tion, (5) reassignment directed Fort clearly ap- erroneous. Swanson further elimination supervisory of peals grant only the court’s decision to $38.42 authority. Several additional acts that oc- relief, equitable rejection in and the court’s 1, 1991, curred presented before November transcript of certain costs associated with questions only. judge the ar- post-trial motions. gued repeated that the acts of discrimination pain suffering,
caused him mental additionally challenges the court’s problems contributed his health and the grant decision motion limine breakup marriage. eventual of his excluding testimony the of witnesses who The members of the were instructed alleged would have testified to acts of dis- they that if found that one or of by more the crimination committed manag- other GSA discrimination, acts illegal they constituted ers other offices. The court found that appropriate were to determine an amount of testify because the not witnesses could damages to compensate any by of anyone acts discrimination in Swan- pain emotional or anguish proximate- chain, mental supervisory testimony the would
H85
proving
the
alternately
throughout
found
ultimate burden of
The court
be irrelevant.
him
against
the defendant discriminated
proposed
the
witnesses were
that because
testify only
at
at
expected
to their
because
race.
Id.
113 S.Ct.
belief
they
discriminated
2749. The inference of discrimination creat-
had been
—rather
discrimination,
any
prima
gone.
case
ed
the
To
than direct evidence
facie
burden,
proba-
satisfy
statutory
finding
plaintiff
formal
discrimination —the
evidence,
out-
would be
offer some
direct or
tive value of
must
whether
circumstantial,
essentially to
weighed by
permits
the time
to infer
proffered explanation
pretext
claim.
relitigate each witness’
illegal
fact
discrimination.
trier of
may
simply
em-
choose
disbelieve the
TV
ployer’s explanation in the absence of
A
showing why it
so.
evidence
should do
Community
v.
EEOC
Louisiana
challenge to the
first address GSA’s
We
Office
Cir.1995)
Services,
1438, 1443-44 (5th
47 F.3d
supporting
sufficiency
evidence
Surgi
(citing
Group
Elliott
Medical and
jury’s
We re-
verdict
favor of Swanson.
(5th
Serv.,
Cir.1983);
714 F.2d
562
cal
cently
concerning
law
suffi-
canvassed the
denied,
1215, 104
cert.
U.S.
S.Ct.
employment
ciency
evidence claims
(1984)).
L.Ed.2d 364
in our en banc decision
discrimination cases
Tools,
75 F.3d
Rhodes v. Guiberson Oil
Accordingly,
in this
question
we face
Cir.1996) (en banc).
Rhodes,
(5th
we
produced any
appeal
is whether Swanson
must, at
plaintiffs
determined that the
case
that,
believed,
if
sustains his burden
evidence
least,
very
a conflict
substantial
create
Having carefully
the ar-
proof.
reviewed
jury may
from which
infer ille-
guments
parties
and the
in this
record
gal
at 993.
discrimination. Id.
case, we conclude that Swanson’s evidence—
*6
Hicks,
v.
Mary’s
509
in the
most
to the
light
St
Honor Center
construed
favorable
502, 113 S.Ct.
H87 available, spaces Courthouse, parking were or that building where New tional located, easily could have obtained on the Moore sufficient office basis is Orleans spaces supervisory parking that Moore distribut- all the GS-12 responded GSA race. spaces parking employees. on a limited number ed system ranking that awarded of a basis only evidence Swanson offered that individuals, and highest to the ranked spaces purported show that distribution available, to then, spaces later became parking discriminatory, was was the testimo- who were branch GS-12 those Andrews, Lillian ny of who testified that chiefs. Moore, supervised previously, who her took argued explanation that parking away space. her Andrews testified to be a because he was believed pretextual space Moore was needed for that claimed 1989, yet chief until December branch testified, agency. Andrews also another' in-building parking not an awarded however, colleagues that her similar white though other branch space even parking spaces. By not rank did even have spaces they “when arrived.” parking received way explanation, Andrews stated her early he was Yet Moore testified colleagues parking spaces, white did not need in-building employee with because, not thought, she one did drive Moore obtained two parking. Later her the other rode work with husband. parking spaces, and awarded them additional away” fact that “took Andrews’ Moore Sarver, Manager the Field Office to Tom parking space space when the GS-13, Snow, and Ron who who was ranked agency explanation that nei- by another —an shortly to serve as the arrived nor not ther Andrews Swanson contested —is Estate branch. Swanson chief Real discriminated evidence Snow, pointed arguing when Snow parking. in the Undis- blacks distribution manager like arrived he was a GS-12 branch that, puted testimony at trial revealed produced Swanson. Wortmann, Pigg both white position while Snow’s GS-12/13 chiefs, similarly lost their branch GS-12 was a Moore further testi- GS-11/12. spaces incoming agency parking when white fied that 1988 and other parking employees. Again, for its needed Evelyn managers, including branch GS-12 offered no evidence to contest in- Pigg, did not have Morris Elvera park- that the number of Moore’s building addi- parking. Moore testified that employees fluct- ing spaces available to GSA parking spaces until tional available according agen- the needs of tenant uated 1990; early spaces were then awarded these cies. Wortmann, Pigg and Ed both GS-12 in- By early
branch chiefs. the GSA concerning the treat- As with claim had had been spection revealed that Swanson tardiness, presented no ment of his incorrectly labeled a branch chief. Moore competent evidence from which the Alex that neither Swanson nor testified descrip- conclude either that Moore’s Deverede, *8 greater super- with white GS-12 system distributing parking tion of his Swanson, visory responsibilities re- than ever false, illegal discrimi- spaces was or that race parking. in-building ceived motivated Moore’s deci- nation nonetheless deny in-building parking complicated parking explanation as the sion to As conelusory be, only the may space. the uncontroverted evidence none- Swanson offered sys- employee that dis- legitimate ranking opinion of another Moore theless establishes a benefits, against because of her race that criminated her awarding tem for limited parking space. Yet ranking away” who “took her system excluded whites when he no from which the rank. Swanson did there was shared Swanson’s race, that rather than rank and testi- infer offer evidence that contested Moore’s availability, dispositive factor. timing was the mony concerning either the limited evidence, legiti- there was no parking. such of the individuals who received Without rank could disre- addi- from which did offer evidence that mate basis Nor gard non-discriminatory proffered attempted disprove any ex- Swanson never testimony, planation. Eschbacher’s but maintained May reassignment must have retaliatory May been because on prepared rights” a “civil memorandum detail- Reassignment Directed Fort Worth ing alleged indicating abuses and that he prosecute would reassign- Swanson’s claim that his directed continue his discrimina- tion claims. discriminatory Swanson testified that he sent ment to Fort Worth was fo- day, the memorandum to Moore the same upon cuses the contention that the directed but Moore testified that he did not it see reassignment against was an action taken May reassignment until after the directed him in retaliation EEO activities.2 had arrived from Fort Worth. Swanson of- responded reassign- that the directed Eschbacher, fered no evidence to show that ment downgrading was of the decision, who made the was even aware of his Facility Support New Orleans office from a rights civil memorandum. Center to an Enhanced Field Office. Esch- undisputed testimony bacher offered that the timing employee’s Close between an decision to transfer Swanson was made protected activity and an adverse action Eschbacher in Fort and that Moore may provide him the “causal connec participate did not reassignment, in the ex- prima tion” to make out a facie cept to Eschbacher’s deliver letter to Swan- Armstrong City case of retaliation. son when the letter was received the New Dallas, (5th Cir.1993).3 997 F.2d Orleans office. However, legiti once the offers a mate, nondiscriminatory explains reason that argued reassignment both the timing, adverse action and the retaliatory was shortly because it was issued plaintiff must offer some evidence from hearing after an administrative on Swanson’s jury may which the infer that retaliation was complaint, immediately EEO following the real argue motive. Swanson did not Swanson’s return from a two-week vacation. reorganization indeed, pretext; was a testified, however, Eschbacher undisputed evidence indicates that most of changes to the New Orleans office had been management personnel, the New Orleans in planned year, for more than a there cluding himself, adversely affect inadequate work in the New Orleans May ed in 1992 when the New Orleans office position. office to Esch- downgraded to an “enhanced field of bacher further testified that no other GSA fice.” “enhanced field “supervisory office” had a building management specialist.” Eschbach- Although only per Swanson was the explained er that he had decided to move office, son relocated to different of February, Fort Worth in fered uncontested that there was May waited until to inform Swanson of the insufficient work posi transfer, so that the transfer would not inter- tion in New Orleans. Swanson never at fere with the hearings being EEO tempted conducted to show that there was sufficient in New Orleans. work for him to remain New Orleans. He 2. Swanson ways enough also stated that prima other em- be for a case. Between facie ployee he knew who had received a directed May example, June 1990 and reassignment minority (Hispanic). also complaints, griev- filed four EEO issued various Eschbacher testified that he had issued directed complaining ances and memorandums of dis- reassignments many to as as 12 dur- actions, criminatoiy participated in an EEO ing his tenure present- in Fort Worth. Swanson hearing meetings lawyer. and numerous with his specific ed no cases or statistical evidence to *9 timing enough, any If alone were action taken only demonstrate that minorities received direct- against Swanson after June no matter how reassignments. ed Swanson also conceded that justified, discriminatory. could be sustained as anticipated part job. transfers were an of his protection against Title VII’s retaliation does not permit complainants disregard EEO work observe, though, 3. We that the mere fact that job requirements. rules or employee some adverse action is taken after engages protected activity in some will not al-
H89 or retali- regional officials discriminated that other did not offer work, by removing the secu- ated Swanson had insufficient also New Orleans short, rity specialists. Swanson not transferred. were dispute as to GSA’s a factual to raise
failed its verdict on jury might The have based for the trans- nondiscriminatory explanation authority by supervisory caused the loss of that offer evidence Nor did Swanson fer. computer programmer the removal activity, his EEO transfer to connected the Ruth, position and the transfer of Alissa jury infer that Esch- from which building management specialist, to the Real by to retaliate a desire was motivated baeher branch, jury if concluded that Estate to transfer when he decided against Swanson supervision from his their earlier removal Accordingly, Fort Worth.4 Swanson “continuing Assum- constituted violation.” reassign- that his directed claim Swanson’s authority ing supervisory that the loss discriminatory fails ment to Fort Worth violation, may continuing we nonetheless be a for lack of evidence. evidence was also insuffi- conclude that the claim. cient on this ' pattern is familiar. Moore offered Authority Supervisory Elimination of legitimate explanations for these actions. computer programmer position had been respect specific to the incidents The
With supervisory incorrectly description included loss of led to Swanson’s responsibilities; supervisory authority, and briefs are unclear the record Swanson’s. by management had no need considered Swanson’s area which incidents were as to computer programmer. Ruth was trans- finding liability point. on this of a jury in when, following the liability for acts to Real Estate factfinder as to ferred was the inspection, was in- December 1989 occurring November 1991. Swanson area did not have authority of his formed that Swanson’s supervisory as lost Worth, and a enough Fort but we work to both Swanson reassignment to directed building management specialist. already was insuf lower-level concluded there have finding of to sustain a liabili ficient evidence evidence that these never offered title, job rank ty on that basis. pretextual. Although were explanations same in Fort Worth. pay remained the repeatedly argued that he needed that his work offered no evidence a trained he was not typing support because required that he have in Fort Worth load in his area not indicate use typist, he did ar supervise, nor did Swanson assistants Furthermore, computer programmer. for a appropriate position with gue that a more assistant, Mazant, testified available supervisory responsibilities was managers had ad- branch that none of the fact, he was transferred. when just typing state- ministrative —a concern whatsoever presented no evidence dispute. did not ment ing position Fort Worth. discrimination of race “evidence” authority supervisory exactly when in in the elimination not reveal The record does state- generalized and unsubstantiated security specialists, were physical 1991 the two that blacks Moore, by Andrews Larry re- ments Swanson and Manuel Gaines supervise whites never allowed supervision, but were from Swanson’s moved testimony unsupported is very long. Such dispute did not Moore’s subjective opinion that nothing than a security opera- more separate that the decision to to establish Swan- entirely incompetent as evidence management building from tions Furthermore, of discrimination. son’s claim level. The there- at the national made specific claim irrelevant to Swanson’s local or it is inferred that the fore could have Although is, fact, option. Swanson testified Esch- able to understand how It difficult longer to move to May retalia- wanted viewed the transfer as he no bacher would have requested tory, given that Swanson had twice never told that he he conceded Fort Orleans, away New he be relocated from change of heart. of this Moore or Eschbacher naming specifically Fort Worth as a desir- once *10 at least half of the subordinates who were determined that the witnesses could offer away” only speculation “taken from him were black. adverse actions they suffered were the result of racial dis- conclude, therefore, We that the evidence crimination or retaliation. We conclude that jury’s finding was insufficient to sustain the the court did not abuse its discretion in re- liability, and the court below erred when it jecting argument individually after con- judgment denied GSA’s motion for as a mat- sidering expected testimony the of each wit- ter of law. ness. B V
Because we conclude that the evidence was verdict, jury’s conclusion, insufficient to the we we hold that the Swanson need not cross-appeal address Swanson’s produce failed to sufficient evidence of either concerning equitable damages the amount of race discrimination or retaliation to sustain Additionally, and costs awarded. for the verdict in Accordingly, his favor. above, reject same reasons cited we the decision of the court denying below argument finding that the court’s of no judgment GSA’s motion for as a matter of liability occurring prior on REVERSED, acts to 1991 was judgment hereby law is clearly erroneous. RENDERED in favor. REVERSED and RENDERED. ground appeal
Swanson’s last is a challenge to the district court’s decision to DENNIS, Judge, concurring Circuit testimony
exclude the of several witnesses part dissenting part: from offices other than New Orleans. Swan argues son that their exclusion was errone respectfully I concur in and dissent in ous based on this court’s recent decision part. very This case is on all issues close to Kelly Boeing Services, Inc., Petroleum dividing minimally the line sustainable (5th Cir.1995). F.3d 350 Kelly, the ex verdicts from those that are deficient in evi- cluded witnesses would have testified to acts However, dentiary basis. the evidence is of concerning plaintiffs actual work envi quality such weight that reasonable and ronment. The court although concluded that fair persons minded impar- in the exercise of may a district court by abuse its discretion judgment that, tial could find in a number of summarily excluding work environment wit instances, employer’s explanations for its nesses, Kelly’s the district court in case did employment adverse worthy actions were not so, not do carefully fact had considered employee belief and that was the each witness. victim of intentional discrimination. Here, contrast, by the excluded witnesses If pro- satisfies its burden of not New Orleans and could ducing evidence that complained of ad- testify to Swanson’s work environment in employment verse actions were taken for New Orleans or to his relations with Moore. legitimate, reasons, nondiscriminatory argues that the excluded witnesses presumption of disappears. discrimination would have testified to similar discriminatory Hicks, Mary’s St. Honor Center v. 509 U.S. actions, such parking, as the denial of retalia- 502, 507, 2742, 2749, 113 S.Ct. 125 L.Ed.2d tion filing complaints, EEO and not (1993). disappearance pre- being supervise “allowed to whites.” Be- sumption, however, does not mean that the cause the chain of command from these wit- jury cannot by consider evidence introduced similarly nesses led to Earl Eschbacher and plaintiff prima to establish a facie ease. Casey Bowen in regional the Fort Worth satisfactory A explanation by employer, office, argues that their supported by evidence, destroys legally “pattern” would reveal a that also affected mandatory inference of arising discrimination Swanson. plaintiffs from the initial evidence. None- carefully theless,
The court below considered the properly this evidence and inferences anticipated testimony witness, of each may drawn therefrom be considered
1191 However, employer’s tion. it the deciding the ex is function of the jury in whether worthy facts, and whether planation of belief the as the traditional finder of the of intentional has been the victim employee Court, weigh, conflicting and not the Rhodes v. Guiberson Oil discrimination. inferences, evidence and and determine the (5th Cir.1996)(en 989, 993-94 Tools, F.3d 75 credibility of witnesses. Hicks, banc); 113 at See 509 U.S. S.Ct. Id. at 374-75. 2749; Dept. at Texas Comm. Affairs Burdine, n. 101 450 U.S. 255 S.Ct. Applying Boeing the standard to all of the (1981). 207 1095 n. 67 L.Ed.2d case, present light the the and presumption the of discrimination Once with all inferences reasonable most favorable like the ease is treated other disappears, plaintiff, the I that conclude there is evi- Guiberson, F.3d at 993. case. We civil weight quality dence of such and that rea- summary for jury verdicts and motions test jurors impartial sonable the exercise of un judgment sufficiency for of the evidence judgment could have reached different con- Boeing Shipman, Co. v. F.2d 365 der the (A) as employer clusions to whether dis- (5th Cir.1969)(en banc), The stan standard. against his criminated Swanson because of granting a motion for for Rule 56 sum dard (1) placing him under race surveillance judgment or 50 motion for mary a- Rule docking and his accrued annual leave time same. judgment as a matter of law is the Id. (2) work; being denying for him late thorough study Boeing, n. 4. In after at 369 equal parking privileges on an with basis prior of this numerous decisions court (3) supervisory personnel; denying other subject, as well had dealt with the which assistance; appropriate giving him staff legal formulations of writers the different evaluation, improperly him an low annual commentators, and the court announced the deprived opportunity which him of an following standard: (B) promotion; retaliated verdict and for On motions directed by the above actions be- notwithstanding verdict judgment complaints cause filed with the all of the evidence— Court should consider Opportunity Equal Employment Commis- just supports that evidence which not sion. light in the non-mover’s case—but all most with reasonable inferences favor- employees There was evidence that white party to the opposed able to the motion. not late were monitored for work arrivals point strong- facts and so If the inferences the management and that watched black em- of one ly overwhelmingly par- favor closely ployees for work rule infrac- more ty that the Court that reasonable believes employees. than also tions other There was verdict, contrary not men could arrive at only manag- that Swanson proper. granting of the motions is On the sign in Ms. er who was and out. hand, if other there is substantial evidence his Mazant testified that after Swanson filed motions, is, opposed to the evidence of atmosphere changed complaint first the work quality weight such reasonable began and that close surveillance and fair-minded men in the exercise of grievance. Although first judgment impartial might reach different parking privileges told he not have conclusions, denied, be motions should seniority to his lack of and the lack due jury. A and the case submitted to the space, that less available there was evidence insufficient to mere scintilla evidence is given parking senior white question jury. The present a for the mo- immediately upon arrivals. spaces their judgment tions for directed verdict and n. There was evidence Swanson was which o. v. should be decided side manager only park not allowed to case, they better of nor should has the garage. his com- basement granted complete is a be when there adequate as- plaint he was denied staff probative facts to absence sistance, regularly Swanson testified jury verdict. must be a conflict in There in on ques- stayed two hours late and came week- evidence to create substantial work, frequent- ends to finish his and that he
ly type had to voluminous contracts. *12 hand, agree major-
On the other I with the
ity jury’s finding that the that the
reassigned to Fort Worth for dis-
criminatory retaliatory sup- reasons is not
ported by a sufficient basis in the evidence.
The decision to relocate Swanson was made Regional by management
at the level in Fort employer gave legitimate,
Worth. The
nondiscriminatory reassign- reason for the longer
ment —there was no a need for a
Building Management Specialist in New Or-
leans. There is no evidence from which a
reasonable inference could be drawn that the
employer’s regional Fort Worth office deci- reassign
sion to Swanson was connected with
the evidence of discrimination his New superiors.
Orleans
Accordingly, I majority’s concur in the de-
cision to reverse respect verdict with employer’s reassignment of Swanson
to Fort resulting Worth and to the loss
supervisory authority; I respectfully dis- majority’s
sent from the decision to reverse jury’s respects. verdict in all other REICH, Secretary
Robert B. Labor, Petitioner, CORPORATION;
ARCADIAN and Occu
pational Safety and Health Review
Commission, Respondents.
No. 96-60126.
United Appeals, States Court of
Fifth Circuit.