Wantou v. Wal-Mart Stores Texas

Case: 20-40284 Document: 00516160815 Page: 1 Date Filed: 01/10/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

January 10, 2022

No. 20-40284

Lyle W. Cayce

Clerk

Yves Wantou,

Plaintiff—Appellant/Cross-Appellee,

versus

Wal-Mart Stores Texas, L.L.C.,

Defendant—Appellee/Cross-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas,

USDC No. 5:17-cv-00018

Before Stewart, Ho, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Both parties appeal certain rulings by the district court relative to the

claims asserted by Plaintiff–Appellant/Cross-Appellee Yves Wantou against

Wal-Mart Stores Texas, L.L.C., under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981a, and Texas law. We

AFFIRM.

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No. 20-40284

I.

Wantou, a pharmacist and black man from Cameroon, West Africa,

filed suit against his former employer, Wal-Mart, contending that Wal-Mart

intentionally subjected and/or allowed him to be subjected to discrimination

based on race, color, and national origin, illegal harassment, and a hostile

work environment. Wantou additionally claims that Wal-Mart retaliated

against him for complaining about discrimination and asserting his rights.

Specifically, Wantou’s suit challenges his termination from employment,

three written “coachings” (formal workplace disciplinary actions) that he

received while employed by Wal-Mart, a threat of demotion, and Wal-Mart’s

alleged failure to pay him for approximately 24 hours of work. Based on these

assertions, Wantou has requested relief in the form of back pay, front pay,

compensatory damages, punitive damages, attorney’s fees, and restitution

under quantum meruit for unpaid work.

In the district court, all of Wantou’s claims were dismissed by

summary judgment except for his Title VII retaliation claims and his

quantum meruit claim. The remaining claims were presented to a jury in

October 2019. The jury rejected all but one claim—regarding the third

coaching—for which it awarded $75,000 in punitive damages. The jury also

provided an advisory verdict recommending an award of $32,240 in back pay

and $0 in front pay. Post-trial, the district court entered judgment in favor

of Wantou as to the third coaching, awarding $75,000 in punitive damages

but only $5,177.50 as back pay. Attorney’s fees also were awarded under 42

U.S.C. § 1988(b) to Wantou as a prevailing party.

On appeal, Wantou challenges the jury’s rejection of his Title VII

retaliation claims regarding his termination and first and second coachings,

and the jury’s failure to award compensatory damages or restitution for

unpaid work and other benefits. Wantou also contests the district court’s

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front and back pay awards, the summary judgment dismissal of his

discrimination and hostile work environment claims, and a number of the

district court’s rulings regarding proposed jury instructions, the admission of

evidence, and limitations on trial time. Wal-Mart appeals all aspects of the

district court’s judgment and post-judgment rulings that are favorable to

Wantou, in addition to arguing that punitive damages, if awarded, should be

remitted to no more than $10,355.

II.

In this appeal, we are tasked with reviewing the district court’s final

judgment and rulings on the parties’ motions asserted pursuant to Rules 49,

50, 51, 56, and 59 of the Federal Rules of Civil Procedure. Summary

judgments rendered pursuant to Rule 56(b) are reviewed de novo, “‘applying

the same standard that the district court applied.’” Aggreko, L.L.C. v. Chartis

Specialty Ins. Co., 942 F.3d 682, 687 (5th Cir. 2019) (quoting Smith v. Reg’l

Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016)). “We may affirm the district

court’s grant of summary judgment on any ground supported by the record

and presented to the district court.” Amerisure Mut. Ins. Co. v. Arch Specialty

Ins. Co., 784 F.3d 270, 273 (5th Cir. 2015).

Summary judgment is appropriate where there is “no genuine dispute

as to any material fact” and “the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56. Material facts are those that “might affect the

outcome of the suit under the governing law.” Leasehold Expense Recovery,

Inc. v. Mothers Work, Inc., 331 F.3d 452, 456 (5th Cir. 2003) (internal

quotation marks and citation omitted). “A genuine [dispute] of material fact

exists when the evidence is such that a reasonable jury could return a verdict

for the non-moving party.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th

Cir. 2017). All facts and reasonable inferences are construed in favor of the

nonmovant, and the court should not weigh evidence or make credibility

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findings. Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009). The

resolution of a genuine dispute of material fact “is the exclusive province of

the trier of fact and may not be decided at the summary judgment

stage.” Ramirez v. Landry’s Seafood Inn & Oyster Bar, 280 F.3d 576, 578 n.3

(5th Cir. 2002).

Although Wantou’s claims were presented to a jury, the jury’s

determinations regarding back pay and front pay are, in this context, only

advisory. That is, back pay and front pay are equitable remedies determined

by the court. See 42 U.S.C. § 1981a(b)(2), (c). Thus, we review the district

court’s findings of fact for clear error and legal issues de novo. Gebreyesus v.

F.C. Schaffer & Assocs., Inc., 204 F.3d 639, 642 (5th Cir. 2000) (following a

bench trial, we review the findings of fact for clear error and the legal issues

de novo). “[F]actual findings made under an erroneous view of controlling

legal principles are reviewed de novo.” Walker v. Braus, 995 F.2d 77, 80 (5th

Cir. 1993).

A finding of fact is clearly erroneous “when, although there is

evidence to support it, the reviewing court, based on all the evidence, is left

with the definitive and firm conviction that a mistake has been committed.”

Gebreyesus, 204 F.3d at 642; see also Anderson v. City of Bessemer, 470 U.S.

564, 573 (1985). Importantly, “[t]his standard plainly does not entitle a

reviewing court to reverse the finding of the trier of fact simply because it is

convinced that it would have decided the case differently.” Anderson, 470

U.S. at 573.

Regarding the jury’s verdict, both parties moved for judgments as a

matter of law or, in the alternative, a new trial. After a party has been fully

heard on an issue during a jury trial, judgments as a matter of law are

appropriately rendered by the court only when “a reasonable jury would not

have a legally sufficient evidentiary basis to find for a party on [an] issue.”

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Fed. R. Civ. P. 50(a). We review de novo the district court’s ruling on a

motion for judgment as a matter of law, applying the same legal standard as

the trial court. Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235 (5th

Cir. 2001). “[W]e consider all of the evidence, drawing all reasonable

inferences and resolving all credibility determinations in the light most

favorable to the non-moving party.” Id. (quoting Brown v. Bryan Cnty., 219

F.3d 450, 456 (5th Cir. 2000)). Although our review is de novo, we recognize

that “our standard of review with respect to a jury verdict is especially

deferential.” Id. Thus, a Rule 50 motion must be denied “unless the facts

and inferences point so strongly and overwhelmingly in the movant’s favor

that reasonable jurors could not reach a contrary conclusion.” Id. (internal

quotation omitted). We reverse the denial of a Rule 50 motion only if the

jury’s factual findings are unsupported by substantial evidence or “the legal

conclusions implied from the jury’s verdict cannot in law be supported by

those findings.” Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 614 (5th

Cir. 2018) (citation omitted).

After a jury trial, Rule 59 of the Federal Rules of Civil Procedure

authorizes courts to grant motions for new trial for any reason for which a

new trial has heretofore been granted in an action at law in federal court. Fed.

R. Civ. P. 59. After a nonjury trial, Rule 59 allows new trials for any reason

for which a rehearing has heretofore been granted in a suit in equity in federal

court. Id. The district court’s exercise of discretion in denying a motion for

new trial or remittitur “can be set aside only upon a clear showing of abuse.”

Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995); see also

Abner v. Kansas City S.R.R. Co., 513 F.3d 154, 157 (5th Cir. 2008).

When reviewing a jury’s conclusions, “we are bound to view the

evidence and all reasonable inferences in the light most favorable to the jury’s

determination.” Rideau v. Parkem Indus. Servs., Inc., 917 F.2d 892, 897 (5th

Cir. 1990). We defer to jury verdicts and interpret them “most favorabl[y] to

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upholding the jury’s decision by a finding of consistency.” Merritt Hawkins

& Assocs., L.L.C. v. Gresham, 861 F.3d 143, 154 (5th Cir. 2017). We will

reverse the denial of a motion for new trial “only when there is an absolute

absence of evidence to support the jury’s verdict.” Williams, 898 F.3d at 614

(citation omitted). “However, when this court is left with the perception that

the verdict is clearly excessive, deference must be abandoned.” Eiland, 58

F.3d at 183. When “defects in the award are readily identifiable and

measurable,” remittitur ordinarily is appropriate. Matter of 3 Star Props.,

L.L.C., 6 F.4th 595, 613 (5th Cir. 2021) (quoting Brunnemann v. Terra Int’l,

Inc., 975 F.2d 175, 179 (5th Cir. 1992)). Constitutional challenges to the size

of the punitive damages award are reviewed de novo. Lincoln v. Case, 340

F.3d 283, 294 (5th Cir. 2003) (citing Cooper Indus., Inc. v. Leatherman Tool

Grp., Inc., 532 U.S. 424, 436 (2001)).

Challenges to jury instructions are governed by Rule 51 of the Federal

Rules of Civil Procedure. We “review challenges to jury instructions for

abuse of discretion and afford the trial court great latitude in the framing and

structure of jury instructions.” Young v. Bd. of Supervisors, 927 F.3d 898, 904

(5th Cir. 2019) (citation omitted). “Verdict forms are considered part of the

jury instruction,” United States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018),

and we consider them “in light of the entire jury instruction.” Jones v. United

States, 527 U.S. 373, 393 (1999) (citation omitted). We ask not whether the

court gave “every correct instruction offered by the parties,” but rather

whether it “correctly and adequately instruct[ed] the jury as to the law to be

followed in deciding the issues.” Alexander v. Conveyors & Dumpers, Inc., 731

F.2d 1221, 1227 (5th Cir. 1984) (per curiam). “[T]he party challenging the

instruction must demonstrate that the charge as a whole creates substantial

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

deliberations.” Young, 927 F.3d at 904 (citation omitted). An error not

preserved as required by Rule 51(d)(1) of the Federal Rules of Civil

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Procedure may be considered if the error is plain and affects substantial

rights. See Fed. R. Civ. P. 51(d).

Finally, we review the district court’s evidentiary rulings for abuse of

discretion. Wallace v. Andeavor Corp., 916 F.3d 423, 428 (5th Cir. 2019) (ci-

tations omitted). “A trial court abuses its discretion when it bases its decision

on an erroneous view of the law or a clearly erroneous assessment of the evi-

dence.” Id. “[T]o vacate a judgment based on an error in an evidentiary rul-

ing, ‘this court must find that the substantial rights of the parties were af-

fected.’” Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 370 (5th Cir. 2000)

(quoting Carter v. Massey-Ferguson, Inc., 716 F.2d 344 (5th Cir. 1983)).

III.

The factual and procedural background of this matter, along with all

contested issues, competing arguments, and substantive legal principles, is

more than adequately set forth in the parties’ extensive briefs and the district

court’s written rulings. Indeed, the district court has generated three lengthy

written rulings laboriously recounting the parties’ motions, arguments,

pertinent evidence, and applicable law. The September 30, 2019 order

devotes 128 pages to discussion of the summary judgment issues and rulings,

whereas the 36-page March 12, 2020 order and 20-page July 6, 2020 order

address the parties’ initial and second round of post-trial motions.

Given this detailed record, we need not parse each of the parties’

many assertions made on appeal. Rather, having carefully reviewed the

parties’ briefs, the record, and applicable law, we agree in large part with the

district court’s assessment. Thus, we shall limit our additional comments

herein to only those areas for which elaboration or modification is truly

warranted.

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A. Hostile Work Environment

Beginning with the district court’s summary judgment dismissal of

Wantou’s hostile work environment claim, Wantou and the Equal

Employment Opportunity Commission (“EEOC”), as amicus curiae,

contend the district court misstated and misapplied the applicable legal

standard for an actionable hostile work environment claim under Title VII.

In addition to protecting employees from race, sex, and national origin

discrimination in the workplace, Title VII also makes it unlawful for

employers to require “people to work in a discriminatorily hostile or abusive

environment.” Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th

Cir. 2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “A

hostile work environment claim is composed of a series of separate acts that

collectively constitute one ‘unlawful employment practice.’” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 106 (2002) (quoting 42 U.S.C.

§ 2000e-5(e)(1)).

To survive summary judgment on a hostile work environment claim,

a plaintiff must show that (1) he is a member of a protected class; (2) he

suffered unwelcomed harassment; (3) the harassment was based on his

membership in a protected class; (4) the harassment “affected a term,

condition, or privilege of employment”; and (5) “the employer knew or

should have known” about the harassment and “failed to take prompt

remedial action.” West v. City of Houston, 960 F.3d 736, 741–42 (5th Cir.

2020) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). For

harassment to affect a term, condition, or privilege of employment, it “must

be sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Id. The

environment must be “both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim in

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fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787

(1998) (citing Harris, 510 U.S. at 21–22)).

The totality of the employment circumstances determines whether an

environment is objectively hostile. Harris, 510 U.S. at 23. Although no single

factor is determinative, pertinent considerations are: (1) “the frequency of

the discriminatory conduct”; (2) “its severity”; (3) “whether it is physically

threatening or humiliating, or a mere offensive utterance”; and (4) “whether

it unreasonably interferes with an employee’s work performance.” Id.

“Title VII, however, is not a ‘general civility code.’” Faragher, 524 U.S. at

788 (internal quotation marks and citation omitted). Thus, “simple teasing,

offhand comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of

employment.” Id.

Arguing that Wantou’s deposition testimony identified pervasive

comments related to his race and national origin that were both insulting and

humiliating, Wantou and the EEOC contend that the district court

erroneously required Wantou to establish conduct by his co-workers that was

severe and pervasive rather than severe or pervasive. We have noted that

“the test—whether the harassment is severe or pervasive—is stated in the

disjunctive.” Lauderdale v. Tex. Dep’t of Crim. Just.,512 F.3d 157, 163 (5th

Cir. 2007). “An egregious, yet isolated, incident can alter the terms,

conditions, or privileges of employment and satisfy the fourth element

necessary to constitute a hostile work environment.” Id. (citing Harvill v.

Westward Commc’ns, LLC, 433 F.3d 428, 434–35 (5th Cir. 2005)). “The

inverse is also true: Frequent incidents of harassment, though not severe, can

reach the level of ‘pervasive,’ thereby altering the terms, conditions, or

privileges of employment such that a hostile work environment exists.” Id.

Thus, “the required showing of severity or seriousness of the harassing

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conduct varies inversely with the pervasiveness or frequency of the

conduct.” Id. (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).

Wantou and the EEOC also maintain that the district court wrongly

emphasized that “the incidents [asserted by Wantou] involved no physical

threat,” thus suggesting that factor is of special importance in determining

whether conduct is “severe” and, in doing so, ignoring that “likening a black

person to an animal is an especially heinous form of harassment.” Abner, 513

F.3d at 168 & n.74; see also Henry v. CorpCar Servs. Hous. Ltd., 625 F. App’x

607, 612 (5th Cir. 2015); Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,

348 (5th Cir. 2007). On this latter point, Wantou testified (at his deposition)

that three Caucasian pharmacy technicians (Ann Samples, Rayla Edwards,

and Wendy Willoughby) “continuously” called him “chimp” or “monkey.”

And, they made “a lot of comments” about Wantou’s negative reaction to

flies being in the pharmacy, telling him that Africa was “probably fly-

infested” and “a dirty place,” so he should just deal with it. They also

“constantly” mimicked and mocked Wantou’s accent, which was especially

offensive because it occurred in front of customers. Wantou additionally

contends that Shawn Shannon—another Wal-Mart pharmacist—

emboldened and amplified the co-workers’ harassment by calling Wantou an

“African fart” and “you little African” on “multiple” occasions.

Furthermore, Shannon eventually stopped speaking to Wantou altogether,

making it harder for Wantou to do his job.

We agree that physical threats are not “indispensable elements” of a

hostile work environment claim. As we have stated before, the test considers

the totality of the circumstances. And the comments that Wantou attributes

to his co-workers are unquestionably reprehensible. Were this the only

evidence before us, we likely would vacate and remand the district court’s

summary judgment relative to Wantou’s hostile work environment for

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further consideration in light of the principles discussed herein. On the

instant record, however, we do not think that necessary here.

We reach this conclusion because of the fifth requirement for an

actionable hostile work environment claim, i.e., that “the employer knew or

should have known” about the harassment and “failed to take prompt

remedial action.” The EEOC’s amicus brief does not focus on this

requirement and Wantou’s assessment regarding this question relative to the

aforementioned offensive comments is scant. Our own review of the record

reveals multiple references to co-workers’ offensive comments in Wantou’s

deposition testimony. On the other hand, the same frequency and specificity

is not true of Wal-Mart’s documentation or the written statements that

Wantou provided to Wal-Mart in connection with his various complaints to

the company.

Among those documents is an October 1, 2015 email from Wantou to

Wal-Mart Market Health and Welfare Director Steven Williams. Wantou

references Shawn Shannon’s not talking to him after September 23, 2015,

except for “violent language or insults in [a] totally unprofessional manner

and in front of techs,” and accuses Shannon of “colluding with some of the

techs to bully, mob, harass him and create a hostile work environment.” In

the same document, Wantou characterizes co-worker Rayla Edwards as

“notorious in her harassment and constant bullying behavior towards me,”

and states that the climate negatively impacts work performance, morale, and

customer service.

Interview documentation completed by Williams in the course of the

investigation that he began in November 2015 references Samples’ admitted

remarks about flies and Africa, as well as the admonition that Samples

received from then-Pharmacy Manager Pascal Onyema about such

comments, and her own contention that she, a “world traveler,” “didn’t

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mean anything” by her comment. A reference to Ebola by a co-worker also is

mentioned.

A statement prepared by Wantou, dated November 22, 2015,

contends that Shawn Shannon is routinely treated more favorably by

Caucasian pharmacy techs, who give Shannon “full support, while being

hostile and uncooperative” to Wantou and “turning a blind eye to Shannon’s

shortcomings.” Wantou also describes Shannon as “on occasion, verbally

violent, unprofessional, [using] insulting language; [and] contributing to a

divide along racial lines by colluding with most of the Caucasian technicians

. . ., to bully, [], and harass me,” whereas [pharmacy tech] Rayla Edwards

“[is] notorious in her harassment and constant bullying behavior,”

“routinely yells at me,” and “displays aggressive behavior towards me.”

The record also includes an email that Wantou sent to himself on June

28, 2015, which references co-worker Ann Samples’ comment about flies and

Africa, and states that, another time, Samples said to Wantou: “You like to

work like a dog, or a monkey rather.” That comment likewise appears in a

written statement that Wantou submitted to Williams on November 22,

2015, in connection with the investigation that Williams was conducting at

the time. In that statement, Wantou adds that he experiences slurs regarding

race, color, and national origin. Id. Finally, in his December 6, 2015 Global

Ethics complaint, Wantou identifies co-worker Rayla Edwards as the most

notorious harasser/bully, followed by Ann Samples, and references the

impact that the hostile climate has on morale and work performance.

Based on this documentation, it is evident that workplace relations at

the Wal-Mart pharmacy at which Wantou worked were hardly copacetic

throughout his employment. Importantly, however, it is not apparent that

offensive racist comments and conduct of the sort highlighted in the EEOC’s

brief and Wantou’s deposition testimony continued after the investigation

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and instruction provided by Wal-Mart managerial personnel, in late 2015, in

response to Wantou’s complaint to management. Furthermore, on April 25,

2016, both Wantou and fellow pharmacist Shawn Shannon received a written

coaching by Wal-Mart Interim Market Health and Welfare Director Damon

Johnson for not maintaining communication as they had previously been

instructed to do. And, according to Pharmacy Manager Katie Leeves, she

also met with Wantou, Shannon, and the pharmacy technicians, on April 26,

2016, to restate the requirement that all personnel act professionally in the

pharmacy.

In all, based on this limited evidentiary showing, it is not evident that

a triable dispute exists relative to whether Wal-Mart remained aware that

Wantou suffered continued harassment and “failed to take prompt remedial

action.” Thus, given this additional determination regarding Wantou’s

hostile work environment claim, we find no reversible error in the district

court’s summary judgment ruling in Wal-Mart’s favor.

B. Jury Instructions

Focusing next on jury instructions, Wantou maintains the district

court erred in failing to include his proposed “Cat’s Paw” instructions in the

court’s instructions to the jury. “[T]he district court’s refusal to give a re-

quested 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.” Kanida v. Gulf Coast Med. Pers. LP,

363 F.3d 568, 578 (5th Cir. 2004). A court’s refusal to give a jury instruction

constitutes error “only if there [is] . . . sufficient evidence to support the in-

struction.” Jackson v. Taylor, 912 F.2d 795, 798 (5th Cir. 1990).

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Here, the district court concluded Wantou did not come forward with

sufficient evidence to support a “Cat’s Paw” causation instruction. If we

were to consider the question in the first instance, we might find no harm in

providing a Cat’s Paw instruction. A plaintiff asserting a Title VII discrimi-

nation claim must show only that the employer’s discriminatory motive “was

a motivating factor” for an adverse employment action. Zamora v. City of

Houston, 798 F.3d 326, 331 (5th Cir. 2015). In University of Texas Southwest-

ern Medical Center v. Nassar, 570 U.S. 338, 362 (2013), however, the Supreme

Court clarified that a plaintiff asserting a Title VII retaliation claim must meet

a higher standard of causation. Such a plaintiff “must establish that his or

her protected activity was a but-for cause of the alleged adverse action by the

employer.” Id. In Zamora, we confirmed that that the Cat’s Paw analysis re-

mains viable in the context of the but-for causation required for Title VII re-

taliation claims. 798 F.3d at 332–33; see also Brown v. Wal-Mart Stores East,

L.P., 969 F.3d 571, 577 (5th Cir. 2020).

“Plaintiffs use a [C]at’s [P]aw theory of liability when they cannot

show that the decisionmaker—the person who took the adverse employment

action—harbored any retaliatory animus.” Zamora, 798 F.3d at 331. Thus,

under the Cat’s Paw theory, a plaintiff must establish that the person with a

retaliatory motive caused the decisionmaker to take the retaliatory action. Id.

“Put another way, a plaintiff must show that the person with retaliatory ani-

mus used the decisionmaker to bring about the intended retaliatory action.”

Id.

Nevertheless, we find no abuse of discretion by the district court. To

start, Wantou’s proposed instructions, as written, are confusing if not, as the

district court concluded, internally inconsistent. And one proposed instruc-

tion referred to “discriminatory bias” and “discriminatory animus” at vari-

ous times, despite the district court’s grant of summary judgment on all

claims of discrimination. In any event, Wantou’s ability to present and argue

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his retaliation claim to the jury was not seriously impaired by the district

court’s ruling.

Through the presentation of evidence, Wantou connected persons

and evidence. And in closing argument, Wantou freely discussed the roles

and alleged motives of the various actors, and was not limited in attributing

those actions and motivations to Wal-Mart, who is the sole defendant. Con-

sistent with Wal-Mart’s disciplinary process and the complexity of Wantou’s

allegations, the instruction did not identify specific decisionmakers. “De-

fendant Wal-Mart” could capture each co-worker or supervisor covered in

Wantou’s requested instruction. Given this wording, Wantou was able to ar-

gue about the retaliatory animus of his co-workers, and assert that animus

resulted in various adverse employment actions. Indeed, Wantou was able to

provide his full story in closing and present all of his arguments to the jury

without objection. Accordingly, we find no error in the district court’s re-

fusal to provide the specific Cat’s Paw instructions that Wantou requested.

C. Jury Verdict—Sufficiency of the Evidence

To establish a claim of retaliation under Title VII or Section 1981, a

plaintiff must prove by a preponderance of the evidence that: (i) he engaged

in a protected activity; (ii) an adverse employment action occurred; and (iii)

a causal link exists between the protected activity and the adverse employ-

ment action. Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007). The

burden of production then shifts to the defendant to articulate a legitimate,

nonretaliatory reason for the alleged retaliatory action. Id. If the defendant

satisfies this burden, the plaintiff must offer sufficient evidence that the prof-

fered reason is a pretext for retaliation. Septimus v. Univ. of Houston, 399 F.3d

601, 608 (5th Cir. 2005); Gee v. Principi, 289 F.3d 342, 345, 347 (5th Cir.

2002). Under this framework, the employee’s ultimate burden is to prove

that the adverse employment action would not have occurred but for the

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protected conduct. Brown, 969 F.3d at 577. Even if a plaintiff’s protected con-

duct is a substantial element in a defendant’s adverse employment action, no

liability for unlawful retaliation arises if the employee would have faced that

discipline even without the protected conduct. See Long v. Eastfield Coll., 88

F.3d 300, 305 n.4 (5th Cir. 1996).

As the district court reasoned, sufficient conflicting evidence exists to

support the jury’s verdict regarding the merits of Wantou’s retaliation

claims. Although we might reach a different result if we considered the claim

in the first instance, that is not the role of the appellate court. Rather, the

record reflects that the jury was presented with all relevant evidence (includ-

ing live witness testimony), heard arguments by counsel, and received the

necessary instruction regarding applicable law by the district court. And, in

the end, the jury’s assessment, including its credibility determinations, fa-

vored Wantou regarding the third (June 28, 2016) coaching, and Wal-Mart

regarding the first and second coachings, as well as Wantou’s termination.

In short, we cannot say the jury’s verdict is against the great weight of the

evidence or that a reasonable person could only have reached an opposite de-

cision. Nor has reversible legal error been identified.

Particularly regarding the third coaching, enough evidence exists to

allow the jury to conclude, despite Pharmacy Manager Katie Leeves’ protests

to the contrary, that Leeves was sufficiently aware of Wantou’s various ethics

complaints (submitted by means of Wal-Mart’s Global Ethics Hotline), and

complaints of race discrimination, when she issued the June 28, 2016 (third)

coaching, and that the coaching would not have occurred but for those com-

plaints. 1 Particularly pertinent here, we again emphasize the applicable

1

For instance, an addendum to Wantou’s formal complaint (dated June 29, 2016)

represents that, on June 27, 2016, the day before the third coaching, Wantou telephoned

Pharmacy Manager Katy Leeves (who was away from the pharmacy) to “complain, once

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standard of review and that the jury, as the trier of fact, is charged with mak-

ing credibility determinations based on testimony and other evidence pre-

sented it. That is, a Rule 50 motion must be denied “unless the facts and

inferences point so strongly and overwhelmingly in the movant’s favor that

reasonable jurors could not reach a contrary conclusion.” Flowers, 247 F.3d

at 235. Thus, we find no reason to set aside the judgment of the district court

and the jury’s verdict relative to this claim.

D. Jury Verdict Form—Inconsistencies and Back Pay Award

Although we appreciate the logic of Wantou’s assertions, we are not

persuaded that the jury’s responses to Questions 4 and 6, or the responses to

Questions 4 and 7.3, of the verdict form are inconsistent. Both Questions 4

and 6 relate to whether Wantou was retaliated against, and the answer to

Question 7 provides the jury’s advisory verdict regarding back pay:

QUESTION 4: Do you find that Plaintiff Wantou would not

have been issued a written coaching on June 28, 2016 but for

his good-faith, reasonable ethics complaints based on race,

color or national origin discrimination by way of Defendant

Wal-Mart’s Global Ethics Hotline?

Answer “Yes” or “No.”

YES

QUESTION 6: Do you find that Plaintiff Wantou would not have

been terminated but for his good-faith, reasonable ethics com-

plaints based on race, color or national origin discrimination by

way of Defendant Wal-Mart’s Global Ethics Hotline?

again, about the disparate treatment on the part of the technicians and the cashiers due to

[his] race, [his] color, and [his] national origin.” The same document accuses Leeves of

“not affording [him] the right to complain, and retaliating against him whenever [he]

complain[s].”

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Answer “Yes” or “No.”

NO

QUESTION 7: What sum of money, if paid now in cash, would

fairly and reasonably compensate Plaintiff Wantou for the dam-

ages, if any, you have found Defendant Wal-Mart caused Plaintiff

Wantou?

3. Wages and benefits from November 9, 2016 to November 5,

2019.

$32,240.00

Regarding Questions 4 and 6, Wantou argues that Wal-Mart conceded

that he was fired for “Misconduct with Coachings,” such that the third

written coaching was a prerequisite to Wantou’s termination. From this,

Wantou maintains, because the jury found his third written (June 28, 2016)

coaching retaliatory, and the third written coaching was a but for cause of his

termination, his termination was retaliatory. Thus, Wantou argues, the jury

could not have answered Question 6 in the negative. Relatedly, Wantou

contends, if his termination was retaliatory, the jury should have awarded full

back pay. As the district court reasoned, however, the jury’s answers to

Questions 4, 6, and 7 are reconcilable.

Wantou’s argument rests on his assertion that his third written

coaching was necessary for his termination. However, as the district court

concluded, a reasonable jury could disagree. Record evidence suggests that

that Wal-Mart’s coaching levels are a guideline rather than a strict hierarchy.

Indeed, Wantou’s second written coaching informed him that the next level

of action (if behavior continued) is “Third Written up to and including

Termination.” Additionally, Wal-Mart presented evidence that providing

immunizations beyond the parameters established by the Standing Order is

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an immediately terminable offense. Notably, though Wal-Mart witnesses

stated that Wantou was not terminated solely because he immunized persons

outside of the age parameters established by the Standing Order, Wal-Mart

also provided extensive evidence of its investigation into Wantou’s

immunization practices.

Furthermore, the cited evidence more than adequately supports the

notion that Wal-Mart’s termination decision turned on the fact that Wantou

continued to immunize outside of the Standing Order’s approved age groups,

even after having been specifically and expressly instructed not to do so, rather than

the mere fact that he already had received a third coaching, such that

termination, rather than another coaching, was the indicated next level of

discipline. Thus, considering Wantou’s behavior—repeated defiance of Wal-

Mart’s corporate policy, the Standing Order, and management’s express

directives—a reasonable jury could find that his termination did not depend

upon the third coaching for purposes of answering Questions 6 and 7.

Additionally, as the district court emphasized, Wantou did not object

to the wording of the jury verdict form when it was provided to the jury or

the jury’s answers upon the return of the jury verdict. Nor, moreover, did

Wantou, who bears the burden of proof, seek to include an additional jury

question or elicit probative testimony (or other evidence) on this particular

point. In other words, Wantou did not ask the persons who decided that he

would be terminated whether his discipline would have been only an

additional coaching, instead of termination, if he had not already received a

third coaching.

Lastly, Question 7 does not dictate that “full back pay” had to be

awarded. Rather, it simply asks the sum of money that would fairly and

reasonably compensate Wantou for lost wages and benefits, if any, that Wal-

Mart was determined to have caused. And, in any event, the parties have not

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disputed the district court’s determination that it, not the jury, was charged

with deciding the actual amount of back pay and front pay, if any, to be

awarded. Thus, the final determination regarding the role that retaliation

played vis-à-vis Wantou’s termination and back pay award was the district

court’s to make, not the jury’s.

Considering the amount of back pay ordered by the court, $5,177.50,

and the other factors discussed herein, we find no clear error occurred

relative to this finding. Indeed, given Wantou’s statement (in closing

argument) that he earned an annual salary of approximately $215,000 while

employed by Wal-Mart, the jury’s advisory verdict of only $32,240

seemingly fails to suggest that the jury was convinced that, but for his third

coaching, Wantou would have maintained his employment and annual salary

during the three years identified in Question 7.3.

E. Punitive Damages

A Title VII plaintiff may recover punitive damages upon proof that the

defendant acted “with malice or with reckless indifference to the federally

protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). This is

a higher standard than the showing necessary for compensatory damages.

Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999). Thus, “not every suf-

ficient proof of pretext and discrimination is sufficient proof of malice or

reckless indifference.” Hardin v. Caterpillar, Inc., 227 F.3d 268, 270 (5th Cir.

2000).

Ultimately, the terms “malice” and “reckless indifference” “focus

on the actor’s state of mind.” Kolstad, 527 U.S. at 535. Both “pertain to the

employer’s knowledge that it may be acting in violation of federal law, not its

awareness that it is engaging in discrimination [or retaliatory conduct].” Id.

Thus, the defendant employer “must at least discriminate in the face of a

perceived risk that its actions will violate federal law to be liable for punitive

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damages.” Id. at 536. “Moreover, even if particular agents acted with malice

or reckless indifference, an employer may avoid vicarious punitive damages

liability if it can show” that the agents’ actions were contrary to the em-

ployer’s good-faith efforts to comply with Title VII. EEOC v. Boh Bros. Con-

str. Co., L.L.C., 731 F.3d 444, 467 (5th Cir. 2013) (citing Kolstad, 527 U.S. at

545–46).

The district court denied Wal-Mart’s motion seeking judgment as a

matter of law regarding punitive damages, concluding Wantou presented ev-

idence that would allow a reasonable jury to conclude that Leeves acted with

malice and that Wal-Mart did not exercise good faith. On malice, Leeves

made several statements detailing a history of personal conflict with Wantou.

Leeves admitted that, before Wantou’s third written coaching, these dis-

putes boiled over with raised voices and that she “did get a little defen-

sive.” Also, their interactions were “very confrontational.” Because the

malice inquiry “focus[es] on the actor’s state of mind,” Leeves “‘must at

least [have] [retaliated] in the face of a perceived risk that [her] actions

w[ould] violate federal law to be liable for punitive damages.’” Boh Bros. Con-

str. Co., 731 F.3d at 468 (quoting Kolstad, 527 U.S. at 535-36). Leeves was

trained on Wal-Mart’s statement of ethics policy, so she knew not to retaliate

against Wantou because of his complaints of discrimination and harassment

by his co-workers. Nonetheless, given the evidence of strong personal con-

flict between Leeves and Wantou, the jury could have reasonably found she

did so, and with malice.

Regarding good-faith efforts, Wantou presented evidence from which

the jury could conclude that at least certain of his ethics complaints were ig-

nored by Wal-Mart. Even before his third written coaching, Wantou’s

ethics complaints were regularly demoted to nonethics. When “Wal-Mart

failed to respond effectively to [discrimination complaints],” the Fifth Cir-

cuit has found sufficient evidence to sustain an award of punitive damages,

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despite Wal-Mart encouraging employees to report grievances. Deffen-

baugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir. 1999).

“For JMOL purposes, the evidence of Wal-Mart’s antidiscrimination good

faith was certainly not so overwhelming that reasonable jurors could not con-

clude otherwise.” Id. A reasonable jury could credit Wantou’s version of the

facts and reject Wal-Mart’s view; the jury, alone, weighs evidence and deter-

mines credibility. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000).

In addition to arguing that no punitive damages are warranted, Wal-

Mart contends the district court’s award of $5,177.50 in back pay cannot sup-

port an award of $75,000.00 in punitive damages. In support of this argu-

ment, Wal-Mart cites Rubinstein v. Administrators of the Tulane Educational

Fund, 218 F.3d 392 (5th Cir. 2000), where the jury awarded $2,500 in com-

pensatory damages plus $75,000 in punitive damages. There, we concluded

the award was constitutionally excessive and remitted it to $25,000—10

times the amount of compensatory damages.

In Abner, however, we reasoned the statutory cap on punitive dam-

ages, coupled with the high threshold for culpability, “confine[d] the amount

of the award to a level tolerated by due process.” 513 F.3d at 157. And, be-

cause Congress “effectively set the tolerable proportion,” we reasoned that

“the three-factor [BMW of North America v. Gore, 517 U.S. 559 (1996)] anal-

ysis is relevant only if the statutory cap itself offends due process.” Id. at 164.

Concluding that it did not, and that a ratio-based inquiry became irrelevant,

we considered the “sufficiency of evidence [supporting] the statutory thresh-

old [to be] a determinant of constitutional validity.” Id. Applying that anal-

ysis here, we are not convinced, on the instant record, that any reduction of

the $75,000 punitive damages award is legally necessary or appropriate.

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F. Evidentiary Rulings

Lastly, Wantou protests a number of the district court’s evidentiary

rulings and limitation of trial time. Again, we emphasize that the applicable

query is not whether another judge necessarily would have rendered the same

ruling. Rather, it is whether the district court charged with this discretionary

duty abused that discretion at the particular time that it was exercised. Con-

sidering the record at hand and the parties’ submissions, we are not con-

vinced that any of these rulings constitute an abuse of discretion. Nor is ap-

parent that any of these rulings adversely affected any of the parties’ substan-

tial rights.

V.

As stated herein, we find no reversible error in the district court rul-

ings challenged on appeal. Accordingly, we AFFIRM.

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James C. Ho, Circuit Judge, concurring in part and dissenting in part:

Yves Wantou is a pharmacist. But for five of his co-workers at Wal-

Mart, all they saw was the color of his skin. According to the summary

judgment evidence, his co-workers repeatedly called him a “monkey,” a

“chimp,” “a little African,” and an “African fart.” They constantly mocked

his accent in front of co-workers and customers. And they made numerous

comments disparaging Cameroon, Wantou’s country of origin, as “Ebola

infested,” “fly-infested,” and a “dirty place.” As one co-worker told

Wantou: “I see pictures of dirty children from Africa with running nose and

flies all over their face all the time. Being from Africa, there is no reason for

you to be annoyed by flies. You come from a dirty and fly-infested country.”

This evidence establishes a troubling pattern of racial harassment—

one that a jury could find sufficiently pervasive to alter the conditions of

employment and thereby support a claim of hostile work environment under

Title VII of the Civil Rights Act of 1964. See, e.g., Alaniz v. Zamora-Quezada,

591 F.3d 761, 771 (5th Cir. 2009) (“A workplace environment is hostile when

it is ‘permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s

employment.’”) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);

Walker v. Thompson, 214 F.3d 615, 619–22 (5th Cir. 2000) (plaintiff survives

summary judgment where evidence demonstrated use of racial epithets

including “little black monkey”); see also, e.g., Spriggs v. Diamond Auto Glass,

242 F.3d 179, 182 (4th Cir. 2001) (reversing summary judgment where

plaintiff suffered “incessant racial slurs” including “dumb monkey”).

But the district court concluded that these incidents, “although

allegedly recurring, . . . involved no physical threat,” and granted summary

judgment to Wal-Mart accordingly.

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I strongly disagree with the respected district judge on this point.

“When the workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment, Title VII is violated.” Harris, 510 U.S. at 21 (cleaned up). And

that is precisely what is presented here.

Physical threats or attacks are not required to establish a hostile work

environment under Title VII. So the absence of physical threats to go along

with the verbal abuse does not prevent this case from proceeding to trial. See,

e.g., Walker, 214 F.3d at 626 (“In the instant case, the district court granted

summary judgment, concluding that ‘[n]one of these comments were

physically threatening or humiliating, nor did they unreasonably interfere

with Walker and Preston’s work. Instead, they were simply truly offensive.’

We disagree.”).

Accordingly, I would vacate the judgment as to the hostile work

environment claim and remand for further proceedings. I would not affirm

on alternative grounds not reached by the district court in the first instance,

nor addressed by Wantou in his pro se brief on appeal—namely, whether

Wal-Mart took prompt remedial action to redress the situation in a manner

sufficient to avoid liability under Title VII. 1

That is an issue that should be decided in the first instance by the

district court, if not by a jury. As we’ve said before, we are a court of review,

not first view. Accordingly, I concur in part and dissent in part.

1

According to Wantou, he first informed Wal-Mart in late October 2015 about his

hostile work environment—an environment that, according to Wantou, continued to

persist through the early summer of 2016, leading up to his termination.

25