The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40652
_____________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
versus
WAL-MART STORES, INC., doing business as
Wal-Mart Store #1296 - San Benito, Texas,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(B-95-CV-123)
_________________________________________________________________
July 29, 1998
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
Primarily at issue in this Title VII case is whether
sufficient evidence supports the jury’s finding that, by refusing
to rehire Charlene Brock, Wal-Mart both discriminated against her
because of her race and retaliated against her because she and/or
her mother had complained of discrimination. For this appeal from
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
the judgment in favor of the Equal Employment Opportunity
Commission, we REVERSE and RENDER judgment for Wal-Mart.
I.
Wal-Mart hired Brock in December 1992 as a part-time seasonal
cashier at its San Benito, Texas, store. She had a high school
education; had prior job experience at K-Mart; and had also worked
as a babysitter and substitute teacher. She was the only black
employee in the store at that time.
On commencing her employment, Brock signed a statement
acknowledging that a reduction in force might be necessary after
peak business seasons; that, if terminated during such reduction
and eligible for rehire, she had to re-apply; that Wal-Mart was not
obligated to contact her for possible rehire; and that employment
applications were valid for only 60 days.
In early February 1993, Irma Adkins was promoted from
assistant manager to manager of the San Benito store. (As
discussed below, Adkins became a central figure in Brock’s Title
VII claims.)
Brock’s 90-day performance evaluation in mid-February 1993
rated her as “meeting requirements” and noted that she was
dependable, flexible, punctual, and maintained a good attitude with
the other sales associates (Wal-Mart’s term for employees).
Nevertheless, a little over a week later, Brock was discharged
during a reduction in force; but, she was classified as “eligible
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for rehire”. (Brock testified at trial that she did not think that
her race had anything to do with this reduction in force release.)
Four months later, in late June, Brock submitted an employment
application to the San Benito Wal-Mart. In mid-July, her mother
complained to the store manager, Adkins, that, as a result of
racial discrimination, Brock had not been rehired. Adkins, who is
hispanic, told Brock’s mother that Wal-Mart does not discriminate;
and that she would look into Brock’s application. Two days later,
Adkins called Brock’s mother and asked if Brock would come for an
interview that afternoon. Following the interview, Brock was hired
as a part-time sales associate in the electronics department.
Later, Brock was reassigned to a cashier position; although she did
not request the transfer, she had no objection to it.
Brock testified that, a few months after her July 1993 return
to work for Wal-Mart, Adkins began treating her worse than other
employees: that Adkins gave her the “cold shoulder” and would not
respond when Brock greeted her; that she was assigned to work at a
cash register directly in front of Adkins’ station; and that Adkins
closely monitored her while she worked. But, although she felt
“uncomfortable” about Adkins’ observation, she did not so advise
Adkins. Brock testified also that Adkins required her to scrape
gum off the floor, which Brock felt was not part of her job duties;
that she was the only cashier to whom Adkins assigned such tasks;
and that, without prior notice so that she could dress accordingly,
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Adkins assigned her to work outdoors in inclement weather in the
garden center.
Brock testified that she felt that Adkins was mistreating her
because of her race. However, she could not explain why, if Adkins
disliked her for that reason, Adkins did not behave the same way
toward her either prior to her February 1993 reduction in force
release or during the first few months after her July 1993 rehire.
Brock acknowledged that there was a posted procedure for
complaints, but testified that she did not follow that procedure
because she did not want to lose her job. Wal-Mart’s “open door
policy” regarding employee complaints provides:
Wal-Mart’s commitment is to maintain a work
environment that is free of harassment and
inappropriate behavior. In keeping with this
commitment, harassment or inappropriate
behavior directed at an Associate by anyone,
whether it’s a member of Management, a
Customer, or a Vendor, will not be tolerated.
If you feel you’ve been a victim of
harassment, or if you have witnessed or have
knowledge of behavior that violates Wal-Mart’s
policy, use the Open Door Policy. If your
immediate Supervisor is the problem, go to the
next level of Management. Be as specific
about the incident as possible.... Remember,
there will be no retaliation for reporting
harassment or inappropriate conduct. If you
feel Wal-Mart has not properly addressed your
claim, you have the right to file a complaint
with your State’s Human Rights Commission or
the Equal Employment Opportunity Commission
(EEOC).
According to Brock, “[I]f I would have called or wrote a complaint,
they would have probably figured, well, she’s the only black one
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that works here. And I would have st[oo]d out, and they would have
known it was me and they would have c[o]me down on me”.
In late September 1993, Brock received a 90-day performance
evaluation, rating her as “meeting requirements” and noting that
she was punctual, worked well with her immediate supervisor, and
had good customer service skills. And, in early December, she
received a six-month evaluation, in which her rating improved; she
was complimented for her strengths, which included punctuality,
dependability, flexibility, and friendliness with customers and co-
workers. Adkins did not participate in either evaluation.
In April 1994, approximately nine months after her rehire,
Brock’s part-time position was eliminated as part of another
reduction in force; but, she was again classified as “eligible for
rehire”. Thirty other part-time and full-time employees were also
released then. Brock refused to sign the exit interview form,
however, because she felt that Adkins was discharging her because
of her race.
The next day, Brock’s mother wrote, and hand-delivered, a
letter to Adkins, stating that she believed her daughter was
released because she was black. Brock testified that it was not
her mother’s idea to claim that Wal-Mart discharged her because of
her race; but that she had her mother write the letter because her
handwriting was better. Wal-Mart did not respond to that letter.
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A week later, Brock’s mother sent a similar letter to Wal-
Mart’s chief executive officer. Again, she did not receive a
response.
In early June 1994, Brock filed a discrimination charge with
the EEOC, alleging that her April 1994 discharge was based on race.
(As discussed below, in late August she added to the charge.)
A week later, on 10 June, Brock submitted an employment
application at the San Benito Wal-Mart. On 15 August, Adkins
resigned as manager of that store. Steve Estrada replaced her.
Brock submitted a second application on 17 August to the San
Benito store. A week later, she amended her EEOC charge, alleging
that, since her termination, she had submitted “several”
applications and had not been rehired. (Brock testified that she
had made “about four” applications prior to amending her EEOC
charge; but only two were introduced into evidence.)
On 13 September, Brock’s mother wrote a letter to the new San
Benito store manager, Estrada, stating that Brock had previously
worked at the store; that she had reapplied; and that she wanted to
be considered for a position. The letter made no reference to any
alleged discriminatory treatment or retaliation, and was
accompanied by another employment application. Brock testified
that she did not receive a response from Estrada; Estrada, that he
did not recall receiving the letter.
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On 12 October 1994, Brock submitted another application to the
San Benito store. And, on 20 October, she applied at Wal-Mart’s
Harlingen, Texas, store. She was interviewed for a position at the
Harlingen store, but not hired.
On 1 November, Brock reapplied at the San Benito store.
(Although Brock testified that she applied “maybe seven times” at
the San Benito store, she introduced only five applications into
evidence.)
The EEOC filed this action in August 1995 against Wal-Mart,
alleging that it refused to rehire Brock because of her race and/or
in retaliation against her because she and/or her mother had
complained of discrimination. The EEOC did not complain about
Brock’s April 1994 reduction in force discharge, even though Brock
had alleged in her original EEOC charge that it was due to
discrimination.
In August 1996, Brock began working part-time for El Globo.
Following two days of trial that September, the jury was asked
to decide whether, from June through December 1994, Wal-Mart
discriminated and/or retaliated against Brock by not rehiring her.
The jury found discrimination and retaliation, and awarded $12,000
for lost wages, $5,000 for past and future compensatory damages,
and $100,000 in punitive damages. Judgment as a matter of law was
denied Wal-Mart both before and after the verdict.
II.
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Wal-Mart challenges the sufficiency of the evidence concerning
discrimination, retaliation, compensatory damages, and malice; the
refusal of a jury instruction defining malice; the amount of
exemplary damages; and the admission of evidence regarding the
reasons for Adkins’ resignation. Because the evidence is
insufficient to sustain liability for either discrimination or
retaliation, we do not reach the remaining issues.
“A [FED. R. CIV. P. 50] motion for judgment as a matter of law
... in an action tried by jury is a challenge to the legal
sufficiency of the evidence supporting the jury’s verdict.”
Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995). “On review
of the district court’s denial of such a motion, the appellate
court uses the same standard to review the verdict that the
district court used in first passing on the motion.” Id. And, in
reviewing the denial of a Rule 50 motion for judgment, we apply the
standard found in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.
1969) (en banc), overruled in part on other grounds, Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc):
[T]he Court should consider all of the
evidence--not just that evidence which
supports the non-mover’s case--but in the
light and with all reasonable inferences most
favorable to the party opposed to the motion.
If the facts and inferences point so strongly
and overwhelmingly in favor of one party that
the Court believes that reasonable men could
not arrive at a contrary verdict, granting
[judgment as a matter of law] is proper.
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Boeing, 411 F.2d at 374. Of course, in this regard, although “we
might have reached a different conclusion if we had been the trier
of fact, we are not free to reweigh the evidence or to re-evaluate
credibility of witnesses.” Hiltgen, 47 F.3d at 700.
A.
A Title VII discrimination claim is subject to the well-known
burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). “[T]he plaintiff first must
establish a prima facie case by a preponderance of the evidence;
once established, the prima facie case raises an inference of
unlawful discrimination.” Rhodes v. Guiberson Oil Tools, 75 F.3d
989, 992 (5th Cir. 1996) (en banc). “The burden of production then
shifts to the defendant to proffer a legitimate, nondiscriminatory
reason for the challenged employment action.” Id. at 992-93. “If
the defendant meets its burden, the presumption raised by the
plaintiff’s prima facie case disappears.” Id. at 993. To prevail,
the plaintiff must prove that “the defendant’s articulated
rationale was merely a pretext for discrimination”. Id.
The EEOC contends that it is entitled to judgment because it
established a prima facie case and Wal-Mart failed to articulate a
legitimate, nondiscriminatory reason for not rehiring Brock. But,
“[a]fter a case has been fully tried on the merits, the McDonnell
Douglas burden shifting analysis ceases to be of import to an
appellate court.” Patterson v. P.H.P. Healthcare Corp., 90 F.3d
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927, 933 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct.
767 (1997); see also Travis v. Board of Regents, 122 F.3d 259, 263
(5th Cir. 1997) (internal quotation marks and citation omitted)
(“When a case has been fully tried on the merits, the adequacy of
a party’s showing at any particular stage of the McDonnell Douglas
ritual is unimportant”), cert. denied, ___ U.S. ___, 118 S. Ct.
1166 (1998). “Instead, our inquiry becomes whether the record
contains sufficient evidence to support the conclusions reached by
the trier of fact.” Patterson, 90 F.3d at 933.
In any event, even assuming that the McDonnell Douglas burden
of production is relevant at this stage of the proceedings, Wal-
Mart satisfied that burden. Although it did not present any
witnesses, it presented its case through cross-examination of the
witnesses called by the EEOC, many of whom were Wal-Mart employees.
Wal-Mart presented evidence that its corporate policy is to make
hiring decisions based on nondiscriminatory factors, and that such
policy forbids discrimination, as reflected in the associate
handbook:
Our commitment to equal opportunity for all
associates is reinforced by policy and by
actions. We do not tolerate discrimination of
any kind. Not only is discrimination against
our beliefs, it’s against the law.
Wal-Mart also introduced evidence of training programs offered to
managerial and supervisory personnel regarding discrimination.
Moreover, although Wal-Mart did not present a specific
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explanation or reason why Brock (as opposed to other applicants)
was not rehired, it elicited evidence that, during the time period
in which Brock sought to be rehired at its San Benito store (June
through December 1994), that store hired only nine persons, some of
whom had been released in prior reductions in force. Olivia
Juarez, who served as personnel manager at the San Benito store,
testified that applications are filed by month, in the order in
which they are received. The applications do not reflect the
applicant’s race. Janie Lopez, personnel manager at the Harlingen
store, testified that, when an opening occurs, the first
applications pulled and reviewed are those filed on the day the
opening arises, because the older the application, the more likely
the applicant has found other employment; and that, in reviewing
applications, no effort is made to give preference to applicants
who have prior Wal-Mart experience. San Benito store manager
Estrada testified similarly — when an opening occurs, the first
applications reviewed are those received that day.
Considering that the San Benito store weekly receives between
10 to 30 applications, and that only nine persons were hired
between June and December 1994, it is not surprising that Brock was
among those not hired for one of those nine openings. As Brock
acknowledged on cross-examination, if numerous persons apply for
only a few openings, some will, and some won’t, be hired.
The EEOC contends that, based on the evidence that Brock was
the only black working at Wal-Mart, that she was treated worse than
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all other employees, and that she was released despite her
experience and good performance reviews, the jury could infer that,
from the beginning, Adkins disliked Brock because of her race.
Wal-Mart urges that Adkins’ feelings toward Brock are irrelevant,
because Adkins did not play a role in making hiring decisions at
the San Benito store.
Adkins did not testify at trial, because neither party could
locate her. And, Brock testified that she did not know who made
hiring decisions at the San Benito store.
Glen Gibardi, a Wal-Mart district manager, testified that,
generally, hiring is done by a hiring committee; that, typically,
the store manager is not part of that committee; that, although a
store manager can overrule the hiring committee, in 13 years he had
never seen that done; and that he did not know whether Adkins had
anything to do with the decision not to rehire Brock.
Lopez, the Harlingen Wal-Mart personnel manager, testified
that hiring at the Harlingen store is done by the hiring committee;
and that, although the store manager has the “last word”, she could
not recall a situation where the manager became involved in making
hiring decisions.
Juarez, who served as San Benito Wal-Mart personnel manager
from June 1993 through April 1994, and was a customer service
manager at that store at the time of trial, testified that hiring
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at the San Benito store was done by a hiring committee; and that
Adkins did not participate in the hiring process.
Estrada, who became manager of the San Benito store in
September 1994, after Adkins’ 15 August resignation, testified that
the hiring committee has the power to do the hiring, but that he
liked to have some input as to who was hired.
To support its assertion that Adkins participated in the
decision not to rehire Brock, the EEOC relies on Gibardi’s
testimony that a store manager can overrule any decision made by
the hiring committee; Estrada’s testimony that he liked to have
input as to who was hired; and Lopez’s testimony that the store
manager has the last word on hiring. At most, this testimony
supports an inference that Adkins had the authority to participate
in hiring decisions at the San Benito store; but, none of the
witnesses testified that she did so. The only evidence that Adkins
ever exercised that authority is when she called Brock to come for
an interview in July 1993, after her mother had complained to
Adkins of discrimination. (As noted, Brock was then hired.)
Even assuming that the evidence supports an inference that
Adkins participated in hiring decisions at the San Benito store,
the probative value of that inference is limited. As discussed,
Adkins resigned on 15 August 1994. Between Brock’s reduction in
force discharge on 20 April 1994 and Adkins’ resignation on 15
August 1994, Brock applied for employment only once (on 10 June).
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Brock’s next application is dated 17 August, after Adkins’
resignation. Accordingly, Adkins’ treatment of, and feelings
toward, Brock are relevant only with respect to the period between
10 June and 10 August (although Adkins resigned on 15 August,
Brock’s 10 June application was valid for only 60 days).
The fact that Brock was the only black employed at the San
Benito store during both periods of her employment does not support
an inference that Wal-Mart refused to rehire her because of her
race. That her race did not necessarily contribute to her not
being hired is demonstrated by her having been hired twice before.
Brock was hired initially in December 1992; and she was hired a
second time, in July 1993, even after her mother had complained to
Adkins about discrimination.
Brock testified that there are not many blacks in San Benito,
which is predominantly an hispanic community; and that she would
not expect too many blacks to apply for jobs at the San Benito Wal-
Mart. Although Estrada testified that the San Benito store weekly
receives approximately 10 to 30 applications, Juarez, who served as
personnel manager at that store from June 1993 through April 1994,
testified that the store received only about three applications per
year from blacks. (This testimony was based on the fact that,
although, as noted, race is not shown on the application,
applicants personally hand Juarez the applications, or request them
from her to complete.) There was also evidence that, between April
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1994 and the time of trial (September 1996), the San Benito store
hired two blacks, one of whom had previously worked at Wal-Mart.
The only evidence which supports the EEOC’s assertion that
Adkins treated Brock worse than all other employees at the San
Benito store is Brock’s earlier-described testimony that, a few
months after she was re-hired in July 1993, Adkins gave her the
“cold shoulder”, made her clean gum off the floor, and made her
work in inclement weather in the garden center, but did not
similarly treat other employees. As stated, Adkins did not
testify.
Brock admitted that all Wal-Mart associates are expected to
keep the floors clean, but asserted that such expectations did not
include scraping gum off the floor. However, Brock described only
one occasion on which she was asked to do so. She also admitted
that all Wal-Mart employees are expected to fill in where they are
needed, when they are needed; and that, from July 1993 to April
1994, she was required to work in the garden area only two or three
times. And, on those few occasions, she was allowed to call her
mother to bring her a coat.
Assuming arguendo that Brock’s testimony could support an
inference that Adkins disliked her, it does not support a further
inference that such dislike was based on Brock’s race. As
discussed, Brock admitted that she had no problems working with
Adkins either prior to the February 1993 reduction in force or
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during the first few months after she was rehired in July 1993,
after her mother had complained to Adkins about discrimination.
Brock could not explain why, if Adkins’ alleged dislike was based
on race, it did not manifest itself until after they had worked
together for several months.
As further evidence that Adkins disliked Brock because of her
race, the EEOC points to Adkins including Brock among those
discharged in the April 1994 reduction in force, despite Brock’s
having received good performance evaluations. (Again, the EEOC did
not claim that discharge was discriminatory.) The EEOC relies on
the testimony of district manager Gibardi and store manager Estrada
that Wal-Mart has no specific policy of deciding who will be
released during a reduction in force; and that performance is taken
into consideration in selecting the employees to be retained during
such a reduction.
No evidence was presented regarding the factors Adkins
considered in determining which employees would be affected by the
April 1994 reduction in force. Juarez, who was then serving as
personnel manager at the San Benito store, testified that part-time
workers (such as Brock) were usually the first to be released in
such a reduction. More important, as noted, the EEOC does not
claim that Brock’s release as part of the April 1994 reduction was
discriminatory. And, it did not introduce evidence regarding the
performance of those employees retained in April 1994.
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Accordingly, whether Wal-Mart had a policy of considering employee
performance in determining who to release, or whether Adkins
followed such a policy in deciding to include Brock in the
reduction in force, is not probative of discrimination in the
decision not to rehire Brock.
The EEOC asserts also that Adkins was even responsible for
Brock’s failure to be hired at the Harlingen store in October 1994.
It relies on the testimony of Lopez, the personnel manager of that
store, that, when interested in a candidate with prior Wal-Mart
experience, she would routinely call that Wal-Mart’s store manager
for a reference. The EEOC maintains that the jury could infer
that, after speaking with Adkins, the Harlingen store did not view
Brock favorably.
But, this contention is not supported by the record. Adkins
resigned from the San Benito Wal-Mart on 15 August 1994. Brock did
not even apply for employment at the Harlingen store until 20
October. Accordingly, the jury could not reasonably infer that
anyone at the Harlingen store spoke with Adkins about Brock. And,
Estrada, who succeeded Adkins as the San Benito store manager,
testified that no one had ever called him and asked about Brock.
In sum, Adkins’ behavior toward Brock supports nothing more
than a possible inference that Adkins may have disliked Brock.
But, it goes without saying that “evidence of mere dislike is not
enough to prove pretext under Title VII”. Grimes v. Texas Dept. of
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Mental Health & Mental Retardation, 102 F.3d 137, 143 (5th Cir.
1996).
As noted, Adkins’ motives are relevant only for the period
between Brock’s 10 June application and Adkins’ 15 August
resignation. Decisions with respect to Brock’s subsequent
applications at the San Benito store were made after Estrada became
manager. The EEOC did not present evidence as to either the
identity of the members of the hiring committee, or a
discriminatory motive on the part of either those committee
members, or Estrada, or any other Wal-Mart employees involved in
the hiring process during that time period.
The EEOC relies heavily, however, on Brock’s being classified
as eligible for rehire when she was released during the April 1994
reduction in force. It points to Gibardi’s testimony that the
determination whether an employee is eligible for rehire depends on
work performance, such as dependability, trustworthiness,
punctuality, and providing good customer service; and that these
factors would be taken into consideration when a former employee
reapplies at a Wal-Mart store. The EEOC relies also on Estrada’s
testimony that such factors would be important and considered in
deciding who to rehire; that Brock’s previous employment with Wal-
Mart would be considered a “plus”; and that, in reviewing Brock’s
qualifications, including her education and experience, he did not
see any reason why she would not have been qualified to fill any
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positions that became available in the cashier or sales floor
category. The EEOC asserts that, in the light of Gibardi’s
testimony that it costs Wal-Mart approximately $1500 to train each
new associate, Wal-Mart logically would have an incentive to hire
former employees who had performed well in order to avoid that
cost.
Wal-Mart’s failure to rehire Brock may have been unwise,
illogical, or uneconomical. But, it again goes without saying that
Title VII does not mandate prudent hiring decisions, only non-
discriminatory ones. Cf. Bodenheimer v. PPG Indus., Inc., 5 F.3d
955, 959 (5th Cir. 1993) (addressing claim under Age Discrimination
in Employment Act).
Next, the EEOC points to the notation “wrong #” written on the
corner of Brock’s application at the Harlingen store. The notation
was in a different color ink than used by Brock to complete the
application. She testified that the notation was not on the
application she tendered to the Harlingen store; and that the
address and telephone number listed on her application were
correct. Lopez, personnel manager at the Harlingen store when
Brock applied, testified that she did not know what the notation
referred to, other than possibly the telephone number being wrong.
Lopez testified also that a person with previous Wal-Mart
experience, who had received good evaluations, would be considered
as long as the hours they could work were unrestricted. Brock
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stated on the application that she had worked at the San Benito
Wal-Mart; and that there were no restrictions on the hours she was
available to work. As stated supra, Brock was interviewed by the
Harlingen store, but not hired.
The EEOC comments that “the strange notation went unexplained,
leaving the jury to weigh the evidence and possibly infer that the
notation was a signal or code indicating the wrong person or race
for the job”. But, any such inference would be based on nothing
but pure speculation, which is obviously inadequate to sustain a
finding that the Harlingen store did not hire Brock because of her
race.
Finally, the EEOC asserts that the discrimination finding is
supported by evidence that Brock was as qualified, and in many
instances more qualified, than those hired at the Harlingen store.
The EEOC notes that, of the persons hired at that store, many had
significantly less education, less experience in retail sales,
and/or no experience working at a Wal-Mart.
Wal-Mart does not dispute that Brock was qualified, and does
not claim that the persons it hired were better qualified than
Brock. In any event, even assuming that such a comparison of
qualifications is relevant in this case, it is well-settled that an
employer has discretion to choose among qualified candidates, so
long as the decision is not based upon unlawful criteria. Wright
v. Western Elec. Co., 664 F.2d 959, 964 (5th Cir. 1981); Amburgey
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v. Corhart Refractories Corp., 936 F.2d 805, 814 (5th Cir. 1991)
(it is not for the court to decide which employee is best
qualified; the employer is entitled to make that decision for
itself).
Our court has stated that evidence that a plaintiff is
“clearly better qualified” than the candidate chosen for a position
can support finding that the employer’s articulated reason is
pretextual. See Amburgey, 936 F.2d at 814 (summary judgment).
This was explained further in Odom v. Frank, 3 F.3d 839 (5th Cir.
1993) (bench trial):
Generally, a court’s belief that an
unprotected applicant who has been promoted is
less qualified than a protected applicant who
has been passed over, will not in and of
itself support a finding of pretext for
discrimination. If, however, the passed over
applicant who is protected against
discrimination is clearly better qualified for
the position in question, a finding of pretext
masking discrimination can be supported by the
promotion of the less qualified person.
Odom, 3 F.3d at 845-46 (emphasis in original). See also Nichols v.
Loral Vought Systems Corp., 81 F.3d 38, 42 (5th Cir. 1996) (summary
judgment in an age discrimination case; “[a] genuine issue of
material fact exists when evidence shows the plaintiff was ‘clearly
better qualified’ than younger employees who were retained”).
The evidence does not establish that Brock was clearly better
qualified than those hired at the Harlingen store after she applied
on 20 October 1994. There is no evidence that a particular level
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of education, experience in retail sales, or prior experience
working for Wal-Mart were qualifications for the positions for
which Brock applied. Even assuming that such qualifications might
be beneficial to Wal-Mart, and that it should have considered them
in making its hiring decisions, that decision is for Wal-Mart, not
a jury, to make.
In any event, as stated, the evidence shows that Brock’s
qualifications were not “clearly better” than those of the persons
hired at the Harlingen store. The EEOC introduced into evidence
the employment applications of all those hired to fill hourly
positions at that store between April 1994 and the September 1996
trial; and Lopez, the Harlingen Wal-Mart personnel manager,
testified that Brock was “as qualified” as “most people” hired for
a part-time cashier’s position. This is insufficient to prove that
Brock was not hired at the Harlingen store because of her race.
The same is true with respect to those hired at the San Benito
Wal-Mart. The EEOC also introduced into evidence the employment
applications of all the hourly associates hired at that store
between April 1994 and the September 1996 trial. Brock was not
“clearly better qualified” than any of them.
In sum, considering the evidence in the light most favorable
to the EEOC, no rational trier of fact could conclude that Wal-Mart
refused to rehire Brock because of her race.
B.
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The other liability finding is that, because Brock had
complained of discrimination, Wal-Mart retaliated by not rehiring
her. Title VII provides, in pertinent part: “It shall be an
unlawful employment practice for an employer to discriminate
against any of his employees ... because he has made a charge ...
under this subchapter.” 42 U.S.C. § 2000e-3(a).
1.
Despite the fact that Brock’s amended EEOC charge does not
allege retaliation, the district court had jurisdiction over the
retaliation claim presented by the EEOC’s complaint. See Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (filing of a
timely charge with EEOC is not a jurisdictional prerequisite to a
Title VII suit in federal court; instead, it is a condition
precedent and is subject to waiver and estoppel); Lawrence v.
Cooper Communities, Inc., 132 F.3d 447, 451 (8th Cir. 1998) (same).
Wal-Mart has never asserted that the EEOC’s retaliation claim is
beyond the scope of Brock’s EEOC charges.
In any event, had Wal-Mart done so, it would probably have
been futile. Regardless of whether an action is brought by the
EEOC or an individual, the scope of the judicial complaint may be
as broad as the scope of the EEOC investigation which can
reasonably be expected to grow out of the initial charge of
discrimination. Sanchez v. Standard Brands, Inc., 431 F.2d 455,
465 (5th Cir. 1970) (suit by individual); Harris v. Amoco
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Production Co., 768 F.2d 669, 684 (5th Cir. 1985) (discussing scope
of civil action brought by EEOC), cert. denied, 475 U.S. 1011
(1986); see also Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864
F.2d 680, 682 (10th Cir. 1988) (internal quotation marks and
citation omitted) (“[w]hen an employee seeks judicial relief for
incidents not listed in [her] original charge to the EEOC, the
judicial complaint nevertheless may encompass any discrimination
like or reasonably related to the allegations of the EEOC charge,
including new acts occurring during the pendency of the charge
before the EEOC”).
Because the alleged retaliation occurred after Brock filed her
initial EEOC charge, the scope of the EEOC’s investigation of the
initial charge could reasonably be expected to encompass it. See
Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 479 (5th Cir. 1991)
(a district court has jurisdiction to hear a claim of retaliation,
even though a charge alleging retaliation has not been filed with
the EEOC, when the alleged retaliation grows out of an
administrative charge that is properly before the court); Gupta v.
East Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981) (same).
See also Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2d Cir.
1993) (where an alleged act of retaliation occurs after an
individual has filed an EEOC charge, the retaliation is reasonably
related to the charge); Seymore v. Shawver & Sons, Inc., 111 F.3d
794, 799 (10th Cir.) (internal quotation marks and citations
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omitted) (when plaintiff seeks judicial relief for incidents not
alleged in EEOC charge, “the judicial complaint nevertheless may
encompass any discrimination like or reasonably related to the
allegations of the [EEOC] charge, including new acts occurring
during the pendency of the charge before the [EEOC]”), cert.
denied, ___ U.S. ___, 118 S. Ct. 342 (1997). As the Tenth Circuit
noted, “[t]his rule obviates the need for filing repetitive
complaints with the [EEOC] where the defendant engages in
retaliatory actions after a complaint has been filed with the
[EEOC]”. Id.
Moreover, several courts have held that the EEOC is not
limited to the specific discrimination alleged by the charging
party, but may sue for any type of discrimination it uncovers
during an investigation of the charging party’s complaint. Under
this rule, if a valid charge of discrimination is filed, the EEOC
may bring a civil action encompassing any discrimination which is
uncovered during a reasonable investigation of that charge. See
EEOC v. General Elec. Co., 532 F.2d 359, 373 (4th Cir. 1976) (cited
with approval by our court in Harris v. Amoco Production; the
standing of the EEOC to sue under Title VII cannot be controlled or
determined by the standing of the charging party); EEOC v. Gurnee
Inn Corp., 914 F.2d 815, 819 n.6 (7th Cir. 1990) (a suit by the
EEOC is not limited to the specific discrimination that the
charging party has standing to raise); see also EEOC v. Allegheny
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Airlines, 436 F. Supp. 1300, 1304 (W.D. Pa. 1977) (EEOC should not
be limited, in its right to bring suit, to the type of
discrimination specifically alleged by the charging party or to a
type of discrimination which the charging party had standing to
assert).
2.
A retaliation claim has three elements: (1)
the employee engaged in activity protected by
Title VII; (2) the employer took adverse
employment action against the employee; and
(3) a causal connection exists between that
protected activity and the adverse employment
action.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert.
denied, ___ U.S. ___, 118 S. Ct. 336 (1997). “The ultimate
determination is whether, ‘but for’ the protected conduct, the
employer would not have engaged in the adverse employment action.”
Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372
(5th Cir. 1998).
In this case, the first two elements for a retaliation claim
are not at issue: Brock filed an EEOC charge and subsequently
applied unsuccessfully for employment. But, the third element is.
Wal-Mart contends that the EEOC failed to present substantial
evidence of a causal connection between Brock’s filing the EEOC
charge and Wal-Mart’s failure to hire her. It bases this on there
not being any evidence that anyone involved in the hiring process
knew that Brock and/or her mother had complained of
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discrimination.2 See Corley v. Jackson Police Dept., 639 F.2d
1296, 1300 (5th Cir. 1981) (“employer cannot be guilty of
retaliation for an employee’s opposition to discrimination unless
[employer] is aware of that opposition”).
Wal-Mart relies on the evidence, discussed supra, that hiring
decisions at its San Benito store were made by a hiring committee.
It contends that the EEOC did not present any evidence regarding
the identity of the members of that committee, or whether those
members were aware of any discrimination complaints by Brock and/or
her mother.
The EEOC points out that Brock’s personnel file contained the
April 1994 letter to Adkins from Brock’s mother, in which she
complained that Brock was being discriminated against because of
her race, and notes that there is evidence that, when considering
rehiring a former employee, Wal-Mart would look at their files or
call the person’s former store manager for a reference. The EEOC
asserts that, in the light of Brock being “more than amply
2
The court instructed the jury that, “[w]hen an employer
decides not to hire or rehire an individual because she or someone
acting on her behalf complained of discrimination, that is
retaliation.” (Emphasis added.) Wal-Mart did not object to that
instruction or to the wording of the jury interrogatory allowing
the jury to find retaliation based on complaints by Brock “and/or
her mother”. Because Wal-Mart does not contend that Title VII’s
anti-retaliation provision, 42 U.S.C. § 2000e-3(a), does not
encompass complaints made by persons other than an employee, we
assume, without deciding, that Brock’s retaliation claim may be
based on complaints made by her mother. However, nothing in this
opinion should be construed as holding that such non-employee
complaints are covered by § 2000e-3(a).
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qualified for the positions”, and that it was standard practice for
Wal-Mart to check the personnel files of former employees applying
for rehire, it is “highly likely” that the persons making the
hiring decisions were aware of Brock’s discrimination complaints,
and chose not to hire her for that reason.
Brock testified that she did not know whether anyone at the
San Benito or Harlingen stores knew that she had complained of
discrimination or filed an EEOC charge during the time she was
applying for employment. Former San Benito personnel manager
Juarez testified that a new file is started if a former employee is
rehired, and that the old file is not used. She testified that she
never reviewed a former employee’s personnel file when that former
employee was being considered for rehire; that she “would not know”
whether a department manager would look at a closed file on a
previous employee; and that it would be “up to the hiring
committee” whether to look at a personnel file of a former employee
being considered for rehire.
As stated, there is no evidence that Adkins participated in
making hiring decisions during the relevant time period (between 10
June, the date of Brock’s first application after the April 1994
reduction in force, and 10 August 1994, 60 days later; Adkins
resigned prior to Brock submitting additional applications).
Although there is evidence that Adkins was aware both of Brock’s
mother’s discrimination complaints and of Brock’s initial EEOC
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charge, the evidence does not support an inference that she refused
to rehire Brock in retaliation. After all, despite the fact that
Brock’s mother complained to Adkins of discrimination after Brock’s
first discharge, Brock nevertheless was rehired in July 1993.
As noted, Estrada, who became manager of the San Benito store
in September 1994 after Adkins’ resignation, testified that he
liked to have input in the hiring process. He testified, however,
that he only made decisions as to which applicants would be
interviewed by the hiring committee after it presented him with
recommendations. There is no evidence that Estrada was presented
with the opportunity to approve or reject any of Brock’s
applications.
Again, there is no evidence as to the identities of the
members of the hiring committee which selected the persons hired at
the San Benito store between June and December 1994. The only
evidence about such membership is that the committee was made up of
department managers, who are hourly employees. Estrada testified
that, at the San Benito store, the only persons who had access to
personnel files were the manager, the assistant managers and the
personnel manager; the department managers did not. Accordingly,
there is no evidence that the hiring committee had access to
Brock’s personnel file.
Estrada testified further that personnel files of former
employees are separated from those of current employees; and that
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he liked to look at former employees’ files regarding their past
performance when considering them for rehire. But, there is no
evidence that he reviewed Brock’s personnel file; in fact, he
testified that he was not aware that Brock had applied for
employment.
As noted, Harlingen store manager Lopez testified that, as a
matter of policy, a former employee’s store manager would be called
for a reference check on a former Wal-Mart employee applying for a
position at the Harlingen store. However, she did not know whether
such a reference check was made with respect to Brock’s
application. And, again, Estrada, manager of the San Benito store
when Brock applied at the Harlingen store, testified that no one
had ever asked him about Brock.
Viewing this evidence in the light most favorable to the EEOC,
no rational trier of fact could conclude that Brock would have been
rehired between June and December 1994 “but for” her having filed
an EEOC charge or her mother having written letters complaining of
discrimination.
III.
For the foregoing reasons, the judgment is REVERSED and
judgment is RENDERED in favor of Wal-Mart.
REVERSED and RENDERED
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