Martha Ellerbrook v. City of Lubbock, Texas

Case: 11-10058 Document: 00511788338 Page: 1 Date Filed: 03/14/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 14, 2012

No. 11-10058 Lyle W. Cayce

Clerk

MARTHA ELLERBROOK,

Plaintiff - Appellant

v.

CITY OF LUBBOCK, TEXAS,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:09-CV-144

Before KING, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

Martha Ellerbrook brought a Title VII retaliation lawsuit against the City

of Lubbock, alleging that the City failed to hire her in retaliation for her

assistance in her husband’s discrimination lawsuit against the City. The case

went to trial and the jury found that the City had retaliated against Martha and

awarded her $243,000 in damages. The district court then granted the City’s

renewed motion for judgment as a matter of law, conditionally granted the City’s

motion for a new trial, and entered final judgment for the City. On appeal,

*

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.

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Martha asserts that the district court erred in granting the City’s renewed

motion for judgment as a matter of law and that the district court abused its

discretion in granting the City’s motion for a new trial. For the following

reasons, we REVERSE the district court’s judgment for the City, REVERSE the

court’s grant of a new trial, REVERSE the court’s order denying Martha’s

motion for attorney’s fees and costs, and REMAND the case to the district court

with instructions to enter judgment for Martha and to consider an amended

motion for attorney’s fees and costs.

I. FACTUAL AND PROCEDURAL BACKGROUND

From 1989 until 2003, Martha Ellerbrook (“Martha”)1 was an employee of

the City of Lubbock (the “City”). Her job titles included industrial wastewater

monitoring program coordinator, environmental inspection services coordinator,

and managing director of management services. During her fourteen years with

the City, Martha gained experience writing grants, preparing budgets, handling

customer complaints, and supervising employees. In 2003, the City eliminated

Martha’s position in a reduction in force.

Martha’s husband, Terry Ellerbrook (“Terry”),2 has worked for the City

since 1982. In January 2005, Tom Adams (“Adams”), the City’s Deputy

Manager, notified Terry that it was the City’s intent to terminate his

employment in ninety days. Terry filed a grievance with the City, and before the

grievance was heard by a hearing officer, the City changed Terry’s job title. In

June 2005, Terry filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). In April 2006, Terry filed a lawsuit against

the City. In May 2006, Terry filed a second charge with the EEOC, alleging that

the City had retaliated against him.

1

Because this opinion discusses both Terry and Martha Ellerbrook, husband and wife

with the same last name, this opinion refers to them by their first names.

2

Martha and Terry were married in 1993.

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In connection with Terry’s EEOC charges and lawsuit, Martha assisted

her husband by speaking with the attorneys and with the EEOC, helping to

prepare production requests and letters to the EEOC, reviewing documents at

City Hall, and attending negotiation meetings. Lee Ann Dumbauld

(“Dumbauld”), the City Manager, was aware of Terry’s litigation against the

City, and she stated that many other City employees knew of Terry’s lawsuit.

Dumbauld also testified that she was aware of Martha’s assistance in Terry’s

litigation, as she met Martha at a mediation.

On November 27, 2006, while Terry’s case was still pending, Martha

submitted an application to the City for the position of water programs

coordinator. The job posting stated that the water programs coordinator

“[a]ssists the Deputy City Manager and performs a variety of highly responsible

technical and administrative assignments related to Water Utilities.” The job

posting set forth several requirements, including “[a]ny combination of education

and experience equivalent to completion of a bachelor degree [sic] in Public

Administration, Business Administration, Environmental Engineering,

Chemistry, Biology, or a related field with an additional three years of

progressively responsible experience in management experience, including

supervisory and financial responsibility.” Other requirements included

knowledge of contract administration and budget management; knowledge of

environmental laws pertaining to water and wastewater; ability to supervise the

work of others; and ability to prepare and administer budgets.

Twenty-four individuals applied for the water programs coordinator

position. The Human Resources Department screened the applications for

minimum qualifications and referred twenty applications to Adams for further

consideration. Adams was responsible for filling the position of water programs

coordinator. On December 12, 2006, Adams held a meeting with several

department heads to review the applications of the twenty candidates and to

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choose several candidates with the best qualifications for interviews. Adams and

the department heads chose four finalists, including Martha.

Given that Terry’s litigation was based on Adams’s alleged actions and

that Martha had applied for a position that Adams was required to fill,

Dumbauld and Adams agreed that the City should hire an outside employment

consultant to conduct the final interviews for the position. Dumbauld testified

that they wanted to avoid the appearance of impropriety, particularly

retaliation, if Martha was not selected for the position. Dumbauld instructed

Adams to work with Chris Hartung (“Hartung”) of Waters Consulting Group,

who had interviewed both Adams and Dumbauld for their positions with the

City. The consultant’s duties were to interview the candidates and make a

recommendation to the City regarding the best qualified candidate; the City

would still retain final authority over which candidate to hire.

After Hartung was retained, Hartung asked Adams to create a “scoring

matrix” to assist in his evaluation of the candidates. Adams testified that he had

reviewed the candidates’ applications and resumes before he created the scoring

matrix. Adams conceded that he could have rigged the scoring matrix to favor

one of the candidates. However, Adams stated that he did not prepare the

scoring matrix to favor particular candidates, but instead prepared the matrix

according to the job description and job duties.

On December 19, 2006, Adams sent Hartung the scoring matrix that he

had created. The scoring matrix included weighted categories for

education (20%), experience (30%), computer skills (10%), leadership

skills (10%), interpersonal skills (10%), and technical skills (10%).3 With regard

to education, the matrix awarded (a) 20 points for a Bachelor’s degree, (b) 30

points for a Bachelor’s degree in Finance, Accounting, or a related field, (c) 20

3

We acknowledge that these percentages do not add up to 100%.

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points for a Master’s degree, and (d) 30 points for a Master’s degree in Finance,

Business Management, or a related field. Thus, an applicant who had a

Bachelor’s degree in Chemistry received 20 points total, while an applicant who

had a Bachelor’s degree in Accounting and a Master’s degree in Finance received

100 points total. With regard to experience, the matrix awarded points for years

of experience in budget preparation, account management, financial planning

and analysis, water and wastewater, and management. For instance, with

respect to account management experience, the applicant received 0 points for

0 years of experience; 5 points for 1-3 years of experience; 10 points for 2-5 years

of experience; and 15 points for 6 or more years of experience.

On January 23, 2007, Hartung interviewed the three finalists for the

water programs coordinator position: Martha, Linda Cuellar (“Cuellar”), and

Tammy Vander Kuy (“Vander Kuy”).4 On January 29, 2007, Hartung completed

the scoring matrix for each applicant. Vander Kuy ranked the highest of all

three applicants, receiving a score of 92.3%; Cuellar ranked second, receiving a

score of 73.3%; and Martha ranked third, receiving a score of 63.6%. Hartung

sent the results to Adams, and Adams hired Vander Kuy because she scored the

highest on the scoring matrix. On February 16, 2007, Martha received a letter

from the City explaining that she had not been chosen for the position and that

the City had hired a more qualified person.

After filing a charge of discrimination with the EEOC and receiving a

right-to-sue letter from the EEOC, Martha timely filed a lawsuit against the

City, alleging retaliation under Title VII. 42 U.S.C. § 2000e–3(a). In her

complaint, Martha alleged that the City unlawfully retaliated against her—by

not hiring her for the position of water programs coordinator—because of her

assistance in Terry’s lawsuit against the City. On May 14, 2010, the City filed

4

One of the four finalists withdrew his application before the interview.

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a motion for summary judgment, arguing that: (1) Martha did not produce any

evidence that Hartung, the decision-maker, knew of her assistance in Terry’s

lawsuit, and thus she failed to establish her prima facie case of retaliation;

and (2) Martha failed to offer evidence that the City’s articulated, non-

retaliatory reason for not hiring Martha—that Vander Kuy was the best

qualified applicant for the position—was pretextual.

With regard to the City’s first argument, the court found that Martha

produced enough evidence to demonstrate that Adams was the decision-maker.

Further, because there was evidence that Dumbauld knew of Martha’s

assistance in Terry’s litigation and that Adams and Dumbauld collaborated

about how to interview Martha in light of Terry’s litigation, the court concluded

that “[t]his is more than enough evidence to infer that Adams knew of [Martha’s]

participation with her husband’s suit.” Thus, the court found that Martha had

established her prima facie case.

With regard to the City’s second argument, Martha asserted that the

City’s reason for not hiring her was pretextual because Adams had designed the

scoring matrix to prejudice Martha and benefit the other candidates. The court

found that Martha provided evidence that “the scoring matrix emphasized skill

sets and qualifications that were different from those listed in the job

applications materials.” Also, the court found that Martha presented evidence

that the scoring matrix was specifically designed to favor Cuellar and Vander

Kuy. Further, Martha offered evidence that Adams had reviewed the

candidates’ applications before creating the scoring matrix, and therefore he

could have designed the matrix to prejudice Martha and favor the other

candidates. The district court denied the City’s motion for summary judgment.

During a jury trial in October 2010, the jury heard testimony from

Dumbauld, Adams, Martha, and Terry, among others. At the close of Martha’s

presentation of the evidence, the City orally moved for judgment as a matter of

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law under Federal Rule of Civil Procedure 50(a), and the district court denied

the motion. At the close of all evidence, the City again moved for judgment as

a matter of law, and the court denied the motion. The jury found that the City

retaliated against Martha by hiring another person for the water programs

coordinator position because Martha had assisted in Terry’s protected activities.

The jury awarded Martha $243,000 in damages. After the jury verdict, the

district court ordered post-verdict motions. On October 28, 2010, the City filed

a post-verdict motion for judgment as a matter of law or for a new trial. Martha

filed motions for entry of judgment and for an award of attorney’s fees.

On December 10, 2010, the district court granted the City’s renewed

motion for judgment as a matter of law, conditionally granted the City’s motion

for a new trial, and denied Martha’s motions for entry of judgment and for

attorney’s fees. The court granted the City’s renewed motion for judgment as a

matter of law on two alternative bases. First, the court analyzed whether

Martha established a prima facie case of retaliation. The court found that

Martha did not present sufficient evidence at trial of Adams’s knowledge of her

assistance in Terry’s litigation, and thus the court held that she failed to

establish a causal connection between her assistance and the City’s failure to

hire her. The court reasoned that “Adams emphatically denied having any

knowledge of [Martha’s] assistance, and [Martha] presented no direct evidence

of such.” The court examined the circumstantial evidence that Martha

presented—including Dumbauld’s knowledge of Martha’s assistance and

Dumbauld’s collaboration with Adams about hiring an outside consultant—but

concluded that this evidence was “less than substantial” and “speculative at

best.” The court held that Martha’s retaliation claim failed as a matter of law.

Second, “out of an abundance of caution,” the district court assumed that

Martha established her prima facie case and then assessed whether Martha

established that the City’s reason for not hiring her was a pretext for retaliation.

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The City’s articulated, non-retaliatory reason for not hiring Martha was that

Vander Kuy was the most qualified candidate based on the results of the scoring

matrix. The court noted that Martha attempted to establish pretext at trial by

arguing that she was clearly better qualified for the position. The court also

noted that Martha argued that Adams’s scoring matrix was designed to

“preclude[] her from scoring high enough to get” the position.

To determine whether Martha established pretext, the district court

proceeded to analyze the results of the scoring matrix. With regard to education,

Martha argued at trial that the City relied on a previously unmentioned job

requirement—applicants having degrees in a business-related field. The court

rejected this argument, stating that this was not a “requirement.” Furthermore,

the district court rejected Martha’s argument that the education category was

determinative. The court adopted the City’s argument that “even removing the

education criterion from the equation, . . . and adding together all the remaining

categories of the matrix as Hartung scored them, [Martha] still would have

scored the lowest of all the interviewees.”

With regard to experience, Martha argued at trial that Adams

manipulated this category by giving great weight to experience in budgets,

accounting, and finance, and that these areas were “not fairly represented in

the . . . job description and posting.” However, the district court credited the

testimony of City employees who stated that the position was in a transition to

become “more focused on budgetary and financial issues.” The court found

Vander Kuy “to be a credible witness,” who testified to “having extensive

experience in budget preparation and financial account management.” The court

stated that “Vander Kuy either outscored or tied [Martha] in every category of

the matrix” and that therefore “no jury could have reasonably concluded that

[Martha] was clearly more qualified than Vander Kuy” for the position. Thus,

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the court found that Martha failed to establish pretext and that her retaliation

claim failed as a matter of law.

Next, the court conditionally granted the City’s motion for a new trial,

reasoning that, based on its above analysis, the verdict as to liability was against

the great weight of the evidence. Furthermore, the court concluded that the

verdict as to damages was against the great weight of the evidence “in that it

[did] not reflect [Martha’s] failure to properly mitigate her damages.” The

district court denied Martha’s motion for attorney’s fees as moot. Martha timely

appealed the district court’s order and judgment.

II. DISCUSSION

A. The District Court’s Grant of Judgment as a Matter of Law

1. Standard of Review

“We review a district court’s grant of judgment as a matter of law de novo,

applying the same standard as the district court.” See Laxton v. Gap Inc., 333

F.3d 572, 577 (5th Cir. 2003) (citation omitted). Pursuant to Federal Rule of

Civil Procedure 50, judgment as a matter of law is appropriate if “the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis to

find for the party on that issue.” FED. R. CIV. P. 50(a). This standard is satisfied

when “the facts and inferences point so strongly and overwhelmingly in favor of

one party that the [c]ourt believes that reasonable men could not arrive at a

contrary verdict.” Laxton, 333 F.3d at 577 (citations and internal quotation

marks omitted).

In making this determination, “[t]he jury’s verdict is afforded great

deference.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir. 2005).

In “review[ing] all of the evidence in the record,” we “must draw all reasonable

inferences in favor of the nonmoving party, and [we] may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000) (citations omitted). Thus, we “must disregard all

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evidence favorable to the moving party that the jury is not required to believe.”

Id. at 151 (citation omitted). Further, we give credence to “evidence supporting

the moving party that is uncontradicted and unimpeached, at least to the extent

that that evidence comes from disinterested witnesses.” Id. (citation and

internal quotation marks omitted).

2. Title VII Retaliation Claim

In this case, Martha asserted a Title VII retaliation claim against the

City—that the City failed to hire her for the water programs coordinator position

because of her assistance in Terry’s protected activities. Because Martha

presented only circumstantial evidence to prove her Title VII retaliation claim,

the McDonnell Douglas burden-shifting framework initially applied to assess her

claim. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13 (1973);

Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002). Under this

framework, a plaintiff must first establish a prima facie claim of unlawful

retaliation, which consists of three elements: (1) the employee engaged in

activity protected by Title VII; (2) the employer took an adverse employment

action against that individual; and (3) a causal connection exists between the

protected activity and the adverse employment action. See Adams v. Groesbeck

Indep. Sch. Dist., 475 F.3d 688, 690-91 (5th Cir. 2007) (citation omitted). If the

plaintiff meets this showing, the burden then shifts to the defendant to

articulate a legitimate, non-retaliatory reason for its decision. See Raggs, 278

F.3d at 468. If the defendant meets this burden, the plaintiff must then offer

sufficient evidence to prove that the defendant’s reason is pretextual. Id.

However, after trial, the McDonnell Douglas framework “becomes moot,

and the question is whether legally sufficient evidence supported the jury’s

finding.” Adams, 475 F.3d at 691 (citation omitted). In a Title VII retaliation

case, “[t]he ultimate determination is whether, ‘but for’ the protected conduct,

the employer would not have engaged in the adverse employment action.”

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Douglas v. DynMcDermott Petroleum Operation Co., 144 F.3d 364, 372 (5th Cir.

1998) (citations omitted); see Vadie v. Miss. State Univ., 218 F.3d 365, 374 (5th

Cir. 2000) (“[D]oes the evidence support a finding that ‘but for’ [plaintiff’s]

protected activity, he would have gotten the job?”).

In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the

Supreme Court held that “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is false, may permit

the trier of fact to conclude that the employer unlawfully [retaliated].” Id. at

148. The Court reasoned that “once the employer’s justification has been

eliminated, [retaliation] may well be the most likely alternative explanation.”

Id. at 147. However, the Court stated that such a showing would be insufficient

to sustain a jury’s finding of liability (1) when the record conclusively established

some other, legitimate reason for the employer’s conduct, or (2) when the

“plaintiff created only a weak issue of fact as to whether the employer’s reason

was untrue and there was abundant and uncontroverted independent evidence

that no [retaliation] had occurred.” Id. at 148 (citations omitted). “Whether

judgment as a matter of law is appropriate in any particular case will depend on

a number of factors[,]” including “the strength of the plaintiff’s prima facie case,

the probative value of the proof that the employer’s explanation is false, and any

other evidence that supports the employer’s case and that properly may be

considered on a motion for judgment as a matter of law.” Id. at 148-49.

3. The District Court Erred in Applying the Standard of Review

On appeal, Martha asserts that the district court did not apply the correct

standard of review in determining whether to grant the City’s renewed motion

for judgment as a matter of law. She argues that the court considered evidence

it was required to disregard, made credibility determinations, and failed to

construe the facts and all reasonable inferences from the facts in the light most

favorable to Martha. We agree.

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First, the district court erred by considering evidence it was required to

disregard. Under the applicable standard of review, the court “must disregard

all evidence favorable to the moving party that the jury is not required to

believe.” Reeves, 530 U.S. at 151 (citation omitted). In its order, the district

court assessed whether Martha produced substantial evidence at trial regarding

Adams’s knowledge about Martha’s assistance in Terry’s protected activities. In

its analysis, the court stated that “[a]t trial, Adams emphatically denied having

any knowledge of [Martha’s] assistance.” However, the jury was not required to

believe Adams’s testimony, as he was not a disinterested witness, and therefore

the district court erred in considering his testimony in its analysis.

Second, the district court erred by making credibility determinations. See

Reeves, 530 U.S. at 150 (stating that “the court . . . may not make credibility

determinations”). Several times in the court’s order, the district court

impermissibly credited the testimony of several City employees. In addition to

crediting the testimony of Adams regarding his knowledge of Martha’s protected

activity, the district court credited the testimony of “[v]arious City employees,

both former and current, [who] testified at trial to the notion that the [water

programs coordinator] position was in transition from a technical position . . . to

one more focused on budgetary and financial issues of the water department.”

Both Adams and Dumbauld testified to this notion, and the jury was not

required to believe their testimony, as these City employees were not

disinterested witnesses. Additionally, the district court improperly credited the

testimony of Vander Kuy regarding her credentials, when the court stated that

it found Vander Kuy “to be a credible witness.”

Third, the district court did not construe the facts and draw all reasonable

inferences from the facts in Martha’s favor. See Reeves, 530 U.S. at 150 (stating

that “the court must draw all reasonable inferences in favor of the nonmoving

party”). Importantly, on the issue of whether Martha established pretext, the

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district court gave no credence to her evidence at trial that Adams manipulated

the scoring matrix to benefit the other candidates and to prejudice Martha. See

id. at 152 (“[T]he court disregarded critical evidence favorable to

petitioner—namely, the evidence . . . undermining respondent’s

nondiscriminatory explanation.”). The court did not view the evidence in the

light most favorable to Martha, particularly her evidence that several categories

of the scoring matrix closely aligned with the credentials and experience of

Cuellar and Vander Kuy. Instead, the court impermissibly viewed the evidence

in the light most favorable to the City—that the water programs coordinator

position was now a financial position and that Adams’s scoring matrix

appropriately reflected this change.

In conclusion, in determining whether to grant the City’s renewed motion

for judgment as a matter of law, the district court impermissibly weighed the

evidence, made credibility determinations, and construed the facts against the

jury’s verdict. See id. at 150-51.

4. The Evidence Was Legally Sufficient to Support the Jury’s Verdict

On appeal, Martha asserts that the evidence presented at trial was legally

sufficient to support the jury’s finding that the City unlawfully retaliated against

Martha because she assisted in Terry’s protected activities. Applying the proper

standard of review, we agree that the evidence was sufficient to support the

jury’s verdict. In its renewed motion for judgment as a matter of law, the City

made two arguments: (a) that no reasonable jury could find a causal connection

between Martha’s protected activity and the City’s failure to hire her because

there was insufficient evidence to show that Adams knew of Martha’s assistance

in Terry’s protected activities; and (b) that no reasonable jury could find that the

City’s legitimate, non-retaliatory reason to hire Vander Kuy—that she was the

best qualified candidate for the position—was a pretext for retaliation. Each of

these arguments will be addressed in turn.

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a. Adams’s Knowledge of Martha’s Assistance in Terry’s Litigation

The City argues that a rational jury could not have concluded that the City

unlawfully retaliated against Martha for her assistance in Terry’s litigation

because the decision-maker, Adams, did not know of her protected activity. The

City contends that the evidence presented at trial only allowed jurors to

impermissibly speculate to reach the conclusion that Adams knew of Martha’s

assistance in Terry’s protected activities. However, viewing the evidence and the

inferences therefrom in the light most favorable to Martha, a reasonable jury

could have inferred that Adams was aware of her assistance in Terry’s protected

activities. Dumbauld, the City Manager and Adams’s supervisor, testified that

she was aware of both Terry’s litigation against the City and Martha’s assistance

in his litigation, as she saw Martha at a mediation. Additionally, Dumbauld and

Adams discussed the issue of interviewing Martha during Terry’s pending

litigation and agreed that the City should hire an outside employment

consultant to conduct the final interviews for the position. From these facts, it

was reasonable for the jury to infer that Dumbauld told Adams of Martha’s

assistance in Terry’s litigation. Indeed, even the district court, in its order

denying the City’s motion for summary judgment, concluded that a reasonable

person could infer that Adams knew of Martha’s assistance in Terry’s protected

activities based on this circumstantial evidence. Thus, based on the evidence

presented at trial, we conclude that a reasonable jury could have inferred that

Adams knew of Martha’s assistance in Terry’s protected activities.5

5

We note that, while this case was pending on appeal, the Supreme Court decided

Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), where the Court held that

an employee who suffered an adverse employment action could bring a Title VII retaliation

claim based on the protected activity of a co-worker who was also a close family member. Id.

at 868-70. This Title VII retaliation claim was based on the employer’s retaliation against the

close family member. Id. at 867. However, the instant case was not tried under Thompson’s

legal theory, as Martha’s claim is that the City retaliated against her, not Terry. Therefore,

Thompson is not directly applicable to our analysis.

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b. The City’s Reason Was a Pretext for Retaliation

The parties dispute whether Martha produced substantial evidence to

demonstrate pretext at trial. A plaintiff may establish pretext by showing that

the employer’s articulated reason for its conduct is false or unworthy of credence.

See Laxton, 333 F.3d at 578. As explained above, “a plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude that the employer

unlawfully [retaliated].” Reeves, 530 U.S. at 148. Therefore, whether Martha

established pretext is important to our determination of whether the evidence

supports the jury’s verdict that the City unlawfully retaliated against Martha.

A plaintiff can demonstrate that an employer’s reason is pretextual in

various ways. See Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989)

(“The evidence which petitioner can present in an attempt to establish that

respondent’s stated reasons are pretextual may take a variety of forms.”)

(citations omitted), superseded on other grounds by statute, Civil Rights Act of

1991, 42 U.S.C. § 1981; see also Ramos v. Roche Prods., Inc., 936 F.2d 43, 48 (1st

Cir. 1991) (“Pretext can be exposed in several different ways.”). In the failure-to-

promote context, the Supreme Court has instructed that a plaintiff may seek to

demonstrate that an employer’s reason was pretextual by, for instance, “showing

that she was in fact better qualified than the person chosen for the position.”

Patterson, 491 U.S. at 187-88. However, the Court held that “[t]he District Court

erred . . . in instructing the jury that in order to succeed [plaintiff] was required

to make such a showing. There are certainly other ways in which [plaintiff]

could seek to prove that respondent’s reasons were pretextual.” Id. at 188. The

Court concluded that a plaintiff “may not be forced to pursue any particular

means of demonstrating that respondent’s stated reasons are pretextual.” Id.

In the failure-to-hire context, courts have recognized many different ways

that a plaintiff may establish pretext. For instance, a plaintiff can demonstrate

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that she is the “clearly better qualified” candidate. See Moss v. BMC Software,

Inc., 610 F.3d 917, 923 (5th Cir. 2010). Also, a plaintiff may prove pretext by

showing “[a]n employer’s reliance on a previously unmentioned job requirement

to justify a challenged hiring decision.” Id. at 926 (citations omitted).

Additionally, “[a]n employer’s violation of its own normal hiring procedure may

be evidence of pretext.” Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095, 1108 (11th

Cir. 2001) (citation omitted), overruled on other grounds by Crawford v. Carroll,

529 F.3d 961 (11th Cir. 2008). Furthermore, a plaintiff may establish pretext by

showing that an employer emphasized qualifications not pertinent to the job in

selecting a candidate. See Courtney v. Biosound, Inc., 42 F.3d 414, 421 (7th Cir.

1994). However, as indicated above, a plaintiff “is not limited to presenting

evidence of a certain type” to establish pretext. Patterson, 491 U.S. at 187.

In the present case, the City’s articulated, non-retaliatory reason for not

hiring Martha was that Vander Kuy was the best qualified candidate, as

indicated by the results of Adams’s scoring matrix. At trial, Martha offered two

strands of evidence to establish that the City’s reason was pretextual. First, she

argued that the City’s reason was false because Adams manipulated the scoring

matrix to prejudice Martha and benefit the other candidates, thereby artificially

making Vander Kuy the best qualified candidate. Second, she argued that she

was clearly better qualified than Vander Kuy for the water programs coordinator

position.

With regard to Martha’s first argument as to pretext, viewing the evidence

and the inferences therefrom in the light most favorable to Martha, a reasonable

jury could have inferred that Adams intentionally manipulated the scoring

matrix to benefit the other candidates and prejudice Martha. Martha produced

evidence at trial that Terry’s discrimination lawsuit against the City was

premised on the actions of Adams, his supervisor, who notified Terry that it was

the City’s intent to terminate his employment in ninety days. As explained

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above, there was evidence from which the jury could have concluded that Adams

had knowledge of Martha’s assistance in Terry’s lawsuit. Thus, the jury could

have inferred a motive on the part of Adams to manipulate the scoring matrix

to Martha’s detriment. Additionally, Adams testified that he reviewed the

candidates’ applications before creating the scoring matrix and conceded that he

could have manipulated the scoring matrix to favor one candidate over another.6

Martha also presented evidence that Adams emphasized

qualifications—especially finance and business qualifications—in the scoring

matrix that were not fairly represented in the official job description or the job

posting. For instance, the scoring matrix awarded extra points for degrees in a

business-related field.7 The job posting lists as a qualification any combination

of education and experience equivalent to the completion of a Bachelor’s degree

in Public Administration, Business Administration, Environmental Engineering,

Chemistry, Biology, or a related field. Evidence introduced at trial indicated

that if the City had a preference for certain educational requirements, such as

degrees in a business-related field, these qualifications should have been listed

in the preferences section of the job posting. Here, the job posting listed no such

preferences. Additionally, Sherry Stephens, a former City employee who was

involved in creating the job description for the water programs coordinator

position, testified that only a Bachelor’s degree was required for the position and

that a Master’s degree was unnecessary. However, under Adams’s scoring

6

Also, Martha introduced evidence at trial that Adams initially told a City employee

that he did not review the candidates’ applications before creating the scoring matrix, from

which the jury could have inferred that Adams was attempting to cover up his actions.

7

The scoring matrix awarded (a) 20 points for a Bachelor’s degree, (b) 30 points for a

Bachelor’s degree in Finance, Accounting, or a related field, (c) 20 points for a Master’s degree,

and (d) 30 points for a Master’s degree in Finance, Business Management, or a related field.

Thus, an applicant who had a Bachelor’s degree in Biology, like Martha, received 20 points

total, while an applicant who had a Bachelor’s degree in Business Administration and a

Master’s degree in Management, like Vander Kuy, received 100 points total.

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matrix, fifty points out of the total of one hundred points in the education

category were reserved for applicants with Master’s degrees.

Furthermore, Martha presented evidence that some of the categories of the

scoring matrix aligned very closely with the resume and experience of the other

candidates. For example, both of the other candidates had degrees in a business-

related field and Martha did not—resulting in the other candidates receiving two

to five times more points in the education category. Martha argued that

Adams’s manipulation of the education category was determinative—even if

Martha received full credit in every other category of the scoring matrix, she still

would not have had the highest score of the candidates. Also, the scoring matrix

gave many points to a candidate who had six or more years of experience in

account management, which closely aligned with Vander Kuy’s resume and was

not specifically listed in the job posting. From this circumstantial evidence,

viewed in the light most favorable to Martha, a reasonable jury could have

inferred that Adams rigged the matrix so that Martha could not score the

highest among the three candidates. Cf. Vadie, 218 F.3d at 374-75 (holding that

sufficient evidence supported the jury’s verdict that the employer retaliated

against an applicant, because the jury could have inferred that the employer

changed the position requirements to exclude that particular applicant from

consideration).

Given our conclusion that a reasonable jury could have inferred pretext

based on Martha’s first argument that Adams rigged the matrix, we need not

reach Martha’s second, more difficult argument that she was clearly better

qualified. In conclusion, a reasonable jury could have found that the City’s

reason for not hiring Martha was pretextual based on evidence indicating that

Adams manipulated the scoring matrix to prejudice Martha and favor the other

candidates. Under Reeves, because Martha presented substantial evidence at

trial to establish her prima facie case and to establish pretext, a reasonable jury

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could have concluded that the City unlawfully retaliated against her. See

Reeves, 530 U.S. at 148.8 “Ever mindful of the recent mandate of Reeves ‘not to

substitute [the court’s] judgment for that of the jury and not to unduly restrict

a plaintiff’s circumstantial case of [retaliation],’” we hold that the City’s evidence

“is not of such magnitude that a reasonable jury could only find in [its] favor.”

Laxton, 333 F.3d at 585-86 (first alteration in original) (citation and internal

quotation marks omitted). Based on the foregoing analysis, we reverse the

district court’s grant of judgment as a matter of law.

B. The District Court’s Grant of a New Trial

1. Standard of Review

We review a district court’s grant of a new trial for abuse of discretion. See

Laxton, 333 F.3d at 586 (citation omitted). “A decision to grant a new trial

is . . . accorded less deference than a decision denying the grant of a new trial.”

Id. (citation omitted). “And where a new trial is granted on the ground that the

verdict is against the weight of the evidence, we exercise particularly close

scrutiny, to protect the litigants’ right to a jury trial.” Shows v. Jamison

Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) (citation omitted). A district

court may grant a new trial if the jury verdict was against the great weight, and

not merely the greater weight, of the evidence. Laxton, 333 F.3d at 586 (citation

omitted). In making this determination, the “district court weighs all of the

evidence, and it need not view it in the light most favorable to the nonmoving

party.” Id. (citation omitted). “This does not mean that a judge may order a new

trial simply because he disagrees with the jury verdict.” Shows, 671 F.2d at 930.

8

The instant case does not involve “a ‘rare’ exception to Reeves where (1) the evidence

conclusively reveals some other, nondiscriminatory reason for the [employer’s action] or (2) the

plaintiff’s showing as to pretext is weak and the employer brings ‘abundant and

uncontroverted’ evidence that its decision was not motivated by [retaliatory] animus.” Laxton,

333 F.3d at 585 (citations omitted).

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We review the evidence closely to ensure that this difficult standard has

been satisfied. Id. Three factors guide our review: (1) the simplicity of the

issues, (2) the extent to which the evidence is in dispute, and (3) the absence of

any pernicious or undesirable occurrence at trial. Id. at 930-31 (citations

omitted). “When all three factors are present, our deference to the jury is

reinforced by our confidence in its ability to understand the issues, to evaluate

credibility and sort through conflicting testimony, and to act reasonably and

fairly in the absence of prejudicial influences.” Id. at 931. “In this situation

there is little, if any, need to defer to the judge as against the jury, and we will

not affirm an order granting a new trial unless on review we are satisfied,

independently, that the jury verdict was against the great weight of the

evidence.” Id. “When one or more of these factors are absent, however, our great

deference to the court’s firsthand experience of the witnesses, their demeanor,

and the context of the trial, takes on special importance, and we will affirm a

new trial order even if on our own review of the ‘cold record’ we are not

convinced that the jury verdict was against the great weight of the evidence.”

Id. (citation and internal quotation marks omitted). “[W]hether or not the three

factors referred to above are present,” the “‘great weight of the evidence’

standard is not easily met,” and “our standard of review on appeal . . . [is] a strict

one.” Id.

2. The District Court Abused its Discretion in Granting a New Trial

In the present case, the district court conditionally granted the City’s

motion for a new trial because it found that the jury’s findings on liability and

damages were against the great weight of the evidence. With regard to liability,

the court reasoned that Martha failed to introduce evidence to establish her

retaliation claim. With respect to damages, the court concluded that the verdict

did not reflect Martha’s “failure to properly mitigate her damages.”

We must first determine whether any of the three Shows factors are

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present in this case. With regard to the first factor, Martha’s Title VII

retaliation claim presents a relatively simple issue. Cf. Woodhouse v. Magnolia

Hosp., 92 F.3d 248, 256 n.6 (5th Cir. 1996) (finding that an age discrimination

claim was a “relatively simple” issue). With regard to the second factor, our

caselaw indicates that this factor is present when only critical issues are in

dispute. See Conway v. Chem. Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th

Cir. 1980) (“In certain critical respects, the evidence was highly conflicting, but

in many other respects it was undisputed.”); see also Carbo Ceramics, Inc. v.

Keefe, 166 F. App’x 714, 717 (5th Cir. 2006) (“[A]lthough the evidence in this case

was disputed, there were numerous areas of agreement between the parties.”).

In the instant case, several critical factual issues were disputed, such as whether

Adams rigged the matrix, but there were many areas of agreement among the

parties about the underlying facts. Thus, the second Shows factor is present.

With regard to the third factor, the trial was devoid of any pernicious occurrence.

Thus, because the Shows factors are present, we need not “defer to the judge as

against the jury,” and we should not affirm the district court’s order granting a

new trial unless, upon our independent review, we are satisfied that the jury’s

verdict was against the great weight of the evidence. Shows, 671 F.2d at 931.

With regard to the jury’s verdict on liability, we hold that the verdict was

not against the great weight of the evidence. Based on our independent review

of the record and on our analysis above, we find that Martha presented

substantial circumstantial evidence from which a reasonable jury could have

concluded that the City unlawfully retaliated against Martha. See Laxton, 333

F.3d at 586 (reversing the district court’s grant of new trial in a discrimination

lawsuit because, contrary to the district court’s conclusion, the plaintiff “did

indeed rebut the proffered nondiscriminatory reason for her termination”).

With regard to damages, a Title VII plaintiff suing for back pay has a duty

to mitigate damages, meaning that the plaintiff “must use reasonable diligence

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to obtain ‘substantially equivalent’ employment.” Sellers v. Delgado Coll., 902

F.2d 1189, 1193 (5th Cir. 1990) (citations omitted). “[T]he employer has the

burden of proving failure to mitigate.” Id. (citation omitted). The jury awarded

Martha $243,000 in damages—three years of back pay plus benefits—which was

the total amount that Martha requested. Therefore, the jury implicitly found

that Martha did not fail to mitigate her damages.

After an independent review of the record, we hold that the jury’s verdict

on damages was not against the great weight of the evidence. At trial, there was

conflicting evidence about whether Martha performed a diligent job search. The

City provided evidence that between March 2007 and September 2009, Martha

did not apply for any position in the City, county, or private business sector.

However, Martha testified that she was looking for employment, but because she

could not find substantially comparable job openings, she did not apply for any

positions. The jury had the “power . . . to believe or disbelieve portions of the

testimony of various witnesses.” Conway, 610 F.2d at 367. The jury was

entitled to credit Martha’s testimony that she did not apply for jobs because she

could not find substantially comparable employment. Therefore, based on

Martha’s testimony, there was sufficient evidence to support the jury’s implicit

conclusion that Martha properly mitigated her damages. The jury’s verdict on

damages was “not against any great evidentiary weight.” Id.; see id. (“On this

record, the jury’s conclusions are at least as likely to be true as any others . . . .”).

In sum, the district court abused its discretion in determining that the

jury’s verdict was against the great weight of the evidence. Therefore, we

reverse the district court’s grant of a new trial and remand the case to the

district court with instructions to enter judgment for Martha in accordance with

the jury’s verdict.

C. The District Court’s Denial of Martha’s Motion for Attorney’s Fees

In its order, the district court denied Martha’s motion for attorney’s fees

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and costs as moot, because the court had granted the City’s renewed motion for

judgment as a matter of law. Because we reverse the court’s grant of judgment

as a matter of law, reverse the court’s grant of a new trial, and remand the case

to the district court with instructions to enter judgment for Martha, Martha’s

motion for attorney’s fees and costs is no longer moot. Thus, we reverse the

court’s denial of Martha’s motion and, upon remand, instruct the district court

to consider an amended motion from Martha regarding attorney’s fees and costs.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s judgment,

REVERSE the court’s grant of a new trial, REVERSE the court’s order denying

Martha’s motion for attorney’s fees and costs, and REMAND the case to the

district court with instructions to enter judgment for Martha and to consider an

amended motion for attorney’s fees and costs. The City shall bear the costs of

this appeal.

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