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 user 2010-03-29 at 10:27:14 am Views: 102
  • #23477
    KIM Y SMITH, Plaintiff-Appellee,
    CORP., Defendant-Appellant.

    No. 08-11115.
    States Court of Appeals, Fifth Circuit.
    Filed: March 24, 2010.
    REAVLEY, JOLLY, and WIENER, Circuit Judges.
    REAVLEY, Circuit Judge.[
    1 ]

    In the published opinion, we explain the reasons for our
    judgment affirming the trial court’s judgment except for vacating the
    award of punitive damages. Here we explain the holding that the evidence
    was sufficient to support Smith’s claim of retaliation.

    establish a retaliation claim under Title VII, a plaintiff must prove
    that (1) she engaged in protected activity, (2) she suffered an adverse
    employment action, and (3) there is a causal link between the protected
    activity and the adverse employment action.[ 2 ] We are concerned only
    with the third element in this case. Xerox argues that the jury could
    not have found on the evidence presented either that Smith’s EEOC
    complaint was a motivating factor for its decision to terminate her, or
    that Xerox would not have terminated Smith even absent an improper
    consideration of the EEOC charge. Xerox moved for judgment as a matter
    of law (JMOL) at the conclusion of the evidence, but the district court
    denied the motion.

    We review the denial of a JMOL motion de novo.
    Bryant v. Compass Group USA, Inc.[ 3 ] A JMOL is warranted when “a
    party has been fully heard on an issue during a jury trial and the court
    finds that a reasonable jury would not have a legally sufficient
    evidentiary basis to find for the party on that issue.”[ 4 ] We consider
    “all of the evidence from the record, draw all reasonable inferences in
    favor of the nonmoving party, and may not make credibility
    determinations or weigh the evidence.” E. Tex. Med. Ctr. Reg’l
    Healthcare Sys. v. Lexington Ins. Co.[ 5 ] We must disregard all
    evidence favorable to the moving party that the jury is not required to
    believe. Reeves v. Sanderson Plumbing Prods., Inc.[ 6 ]

    argues that we must limit our inquiry to evidence of events occurring
    after Smith filed her EEOC charge in November 2005. We disagree.
    Although events following the EEOC complaint may be the most relevant to
    the retaliation charge, Smith’s allegations cannot be parsed and
    considered in a vacuum. Instead, all the evidence relevant to Smith’s
    employment and interaction with Jankowski provides background and
    context for the later termination decision and may be considered if the
    jury could have drawn from it any inferences supporting its verdict.
    Viewed in this light, we think the evidence in toto, even if not
    overwhelming, was sufficient to support the retaliation claim.

    in the light most favorable to Smith, the evidence showed that Smith
    excelled in her position in 2003. During that year she achieved well
    over 100% of her plan numbers and was rewarded by Xerox with the
    President’s Club award, which goes only to the top eight performing
    employees in the nation. In 2004, Smith’s performance declined, but she
    still achieved approximately 90% of her plan, and Smith’s manager
    commended her for doing a good job. Then after Jankowski took over and
    there were significant changes to Smith’s territory and the number of
    agents that she supported, Smith struggled to make her plan numbers, and
    she had a difficult relationship with Jankowski. The evidence suggests
    that the relationship was strained from the start when Smith missed a
    meeting Jankowski scheduled for a Sunday at the beginning of the year
    prior to a national kickoff meeting in Virginia. Smith was unable to
    travel from Texas to Virginia in time for the meeting, and Smith
    believed Jankowski resented her for that.

    Smith testified that
    Jankowski ignored her in conference calls, gave her no feedback,
    counseling, or coaching, and failed to openly discuss her performance
    expectations beyond the need to simply “make plan.” According to Smith,
    this situation persisted before she was placed in the Performance
    Improvement Process even though Xerox’s written policies called for an
    ongoing dialogue between employees and managers. Smith insisted that she
    was never asked for input about performance expectations and was simply
    told to “make plan.” Smith’s characterization of Jankowski’s management
    style was supported by other evidence showing that Jankowski disliked
    his employees asking questions. Other employees testified that Jankowski
    was results- and process-oriented and could be a “hard ass.” One fellow
    employee, Cindy Fowler, testified that Jankowski’s style was that he
    ran the show and he insisted that employees do things his way, often
    dismissing the ideas of others. She testified that Jankowski’s
    management style was especially “intense” when dealing with women. She
    had heard it said of Jankowski that he did not work well with female
    employees, and she admitted that she may have also made that complaint.

    incident showing the relationship between Smith and Jankowski is
    particularly telling of an animus by Jankowski. One of Jankowski’s
    concerns about Smith’s performance was her handling of the so-called
    “Low Hanging Fruit” procedure, which concerned the facilitation of sales
    to existing customers. The warning letter that Jankowski issued to
    Smith specifically pointed out his concern. Smith presented testimony
    from Steven Webster, a sales manager for one of the Xerox agents, who
    said that Smith did what she was supposed to do with respect to low
    hanging fruit. Bonnie Dooley, another Xerox agent that Smith supported,
    testified that Smith’s level of support was “very good” and that she put
    a lot of effort into the low hanging fruit procedure. But more
    important, in response to Jankowski’s criticism about her handling of
    low hanging fruit, Smith sent an e-mail to some of her co-workers asking
    for their help and information on how they handled the procedure. After
    Jankowski found out about Smith’s request, he sent an e-mail message to
    those employees but apparently copied Smith by mistake. Jankowski then
    used a procedure to electronically re-call the e-mail so that it could
    not be viewed by the recipients. However, Smith was able to capture part
    of the message, which supports a conclusion that Jankowski instructed
    the other employees not to assist Smith.[ 7 ]

    Against this
    backdrop, we turn to the letters Jankowski issued Smith placing her on a
    90-day warning period and then on a 60-day probationary period. Both
    letters informing Smith of these actions were detailed in their
    descriptions of Smith’s deficiencies, including her failure to meet her
    plan numbers. There was significant dispute at trial as to whether the
    letters accurately stated any deficiencies other than Smith’s falling
    below her plan numbers, or whether Jankowski provided the level of
    support and assistance he promised to give to help Smith improve. What
    was not disputed, however, was that Xerox’s policies generally state
    that counseling and coaching of employees should occur prior to the
    issuance of formal warning letters, yet Xerox offered no documentation
    supporting Jankowski’s claim that he did counsel Smith before placing
    her on probation. Joe Villa agreed that Xerox policies for the
    disciplinary process contemplate a great deal of additional
    documentation prior to issuance of a letter placing an employee in the
    Performance Improvement Process, but that such additional documentation
    was absent in Smith’s case.[ 8 ]

    Smith filed her EEOC complaint
    alleging discrimination on November 17, 2005. She immediately notified
    Jankowski about the complaint that same day. Smith’s personnel file,
    which was produced and paginated by Xerox as part of this litigation,
    shows a fax cover sheet dated November 29, 2005, immediately preceding
    the written request for Smith’s termination. Smith argues that this
    document shows Xerox began the termination process only days after the
    EEOC charge. Xerox argues that there are two identical copies of the
    November 29, 2005 fax cover sheet in Smith’s file. It contends that the
    copy preceding the termination request was simply an additional copy
    that was placed out of order in the file. It also contends that the
    termination request shows that it was made in January 2006 after Smith’s
    probation ended.

    The exact nature of the fax transmittal form is
    unclear because of several inconsistencies on the face of the document
    and in the record. Xerox is correct that the first page of the
    termination form is stamped as received on January 4, 2006. The form is
    dated as signed by Villa on that date and by Jankowski on January 3,
    2006. The bottom of the last page of the form contains fax transmittal
    information showing a fax date of January 4, 2006. This transmittal
    information is missing from the bottom of the first page of the form,
    however, leaving one to wonder how or when the first page was
    transmitted. Xerox is incorrect that the two fax cover sheets that are
    dated on November 29, 2005, are identical, as a close inspection reveals
    otherwise.[ 9 ] We are unable to conclude whether the November 29, 2005
    fax cover sheet transmitted the termination request. We are able to
    say, however, that the two cover sheets were written at different times
    with the same date, and the exhibit confusion is left for the jury to
    resolve. See Boeing Co. v. Shipman.[ 10 ]

    Within a matter of only
    weeks from Smith’s EEOC charge, Jankowski issued a letter of concern to
    Smith for allegedly making false claims on two expense reports. Smith
    claimed reimbursement for a car wash of a company vehicle, even though
    the receipt turned out to be for her personal vehicle, and she claimed
    reimbursement for mileage driven for company purposes even though she
    had also taken a vacation day for that date. The evidence, again viewed
    in the light most favorable to Smith, was that this letter could support
    a charge of expense account fraud, a serious accusation that could be
    reported to corporate security. As it turned out, Smith had a reasonable
    explanation for the claimed expenses. The car wash was apparently a
    simple mistake, and the mileage request was arguably compensable.[ 11 ]
    However, rather than seek Smith’s explanation for the expenses,
    Jankowski issued the letter of concern chastising Smith for her actions.

    damaging to Xerox with respect to this letter was the testimony of Joe
    Villa, the human resources manager. Villa testified that before
    Jankowski issued such a letter of concern he should have spoken to Smith
    to obtain her explanation and he should have sought the participation
    of the human resources department. Villa agreed on direct examination
    that Jankowski did not do so. Smith also presented Villa’s deposition
    testimony about the letter of concern, in which he agreed that if
    Jankwoski issued the letter without speaking to Smith it would look like
    Jankowski was lashing out or retaliating against Smith. Villa’s
    testimony was tantamount to an admission of retaliation.[ 12 ]

    argues that the letter of concern is irrelevant because Smith did not
    claim in her EEOC complaint that it was an adverse employment action. It
    also contends that the letter is similar to a memorandum that we found
    insufficient to show pretext in Bryant.[ 13 ] We disagree. In Bryant a
    memorandum merely memorialized past transgressions by the employee, and
    we concluded that there simply was no evidence linking the memorandum or
    the past transgressions with the employee’s termination.[ 14 ] Here,
    the letter of concern, sent without prior discussion with Smith,
    involved new allegations of wrongdoing, one of which Smith conceded to
    be a simple mistake over receipts (the carwash) and the other of which
    was arguably not error by Smith (the miles). In light of Villa’s
    testimony, the jury was not required to accept that this letter was just
    a simple memorialization of inaccuracies in an expense report.
    Following so closely on the heels of Smith’s EEOC complaint, the letter
    was certainly probative of Jankwoski’s attitude toward Smith and
    provided further context for Jankowski’s decision to seek Smith’s
    termination. Cf. Burlington N. & Santa Fe Ry. Co. v. White.[ 15 ]

    on Clark County School District v. Breeden,[ 16 ] Xerox argues that we
    can draw no inference of causation between Smith’s EEOC complaint and
    her subsequent termination because Smith had been placed on probation
    months before the termination and it was not required to cancel or
    freeze disciplinary proceedings. In Clark County, the plaintiff was
    transferred to a new position only one month after filing a lawsuit, and
    her retaliation claim relied solely on this temporal proximity. The
    evidence showed, however, that plaintiff’s transfer was contemplated by
    the manager before he knew about the suit. The Supreme Court held that
    employers “need not suspend previously planned transfers upon
    discovering that a Title VII suit has been filed, and their proceeding
    along lines previously contemplated, though not yet definitively
    determined, is no evidence whatever of causality.”[ 17 ] Under Clark
    County, Xerox is correct that it need not have ceased its disciplinary
    procedures upon learning of Smith’s EEOC complaint. But Smith’s
    placement in the disciplinary process prior to her EEOC complaint, while
    certainly relevant, is not the only consideration. If it were, we could
    easily conclude from this circumstance alone that Smith’s retaliation
    claim fails. However, the existence of a causal link between protected
    activity and an adverse employment action is a “highly fact specific”
    and difficult question. Nowlin v. Resolution Trust Corp.[ 18 ] We have
    previously said that indicia of causation may be seen in factors such
    as: (1) the employee’s past disciplinary record, (2) whether the
    employer followed its typical policy and procedures in terminating the
    employee, and (3) the temporal proximity between the employee’s conduct
    and termination.[ 19 ] Smith, unlike the plaintiff in Clark County, has
    not presented evidence only of temporal proximity. Smith was a
    long-tenured employee with no disciplinary history prior to 2005 who was
    subjected not only to termination shortly following the EEOC complaint
    but also to suspicious new charges of wrongdoing for arguably minor
    incidents following that complaint. Cf. Shirley v. Chrysler First, Inc.[
    20 ]

    We think the evidence was sufficient for the jury to
    conclude that Jankowski’s animus toward Smith boiled over due to the
    filing of the EEOC complaint, which provided a motivating factor for the
    termination. In sum, Jankowski failed to follow Xerox policies as far
    as documentation prior to placing Smith in the disciplinary process; the
    termination process itself was set in motion by the transmittal of the
    termination request within days of the EEOC charge even though Smith was
    supposed to be on probation for 60 days; a subsequent letter of concern
    followed closely after the EEOC charge and leveled new and potentially
    serious accusations for incidents that were arguably minor and easily
    explained; and Villa admitted that the letter of concern was suspicious
    and indicative of retaliatory motivation.

    The evidence was also
    sufficient for the jury to reject Xerox’s affirmative defense and find
    that Xerox would not have made the same termination decision absent an
    improper consideration of Smith’s EEOC complaint. It is important to
    remember that Xerox bore the burden of proving this defense and was
    required to present objective proof that it would have made the same
    decision. See Garcia v. City of Houston.[ 21 ] An employer does not meet
    its burden of demonstrating its affirmative defense merely by showing
    that its employment decision would have been justified; instead, it must
    show that its legitimate reason alone would have resulted in the same
    decision.[ 22 ] The jury was not required to believe that, absent the
    EEOC complaint, Xerox would have terminated a 22-year employee with no
    prior disciplinary problems and who was recently among the top eight
    performing employees in the country, when Villa testified that a job
    reassignment would ordinarily be considered for an employee with such a
    track record and that termination would be an option of last resort.[ 23
    ] We therefore conclude that the evidence was sufficient to support
    Smith’s claim of retaliation.