Case: 08-11115     Document: 00511061103          Page: 1    Date Filed: 03/24/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 24, 2010

                                       No. 08-11115                    Charles R. Fulbruge III
                                                                               Clerk

KIM Y SMITH,

                                                   Plaintiff-Appellee
v.

XEROX CORP,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1213


Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
REAVLEY, Circuit Judge:*
        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.
        To 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

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-11115             Document: 00511061103     Page: 2     Date Filed: 03/24/2010

                                           No. 08-11115

adverse employment action.1 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.2 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.”3
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.4 We must disregard all evidence favorable to the moving party that the jury
is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc.5
       Xerox 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



       1
           Fabela v. Socorro Indep. Sch. Dist., 

, 414 (5th Cir. 2003).
       2
           

, 475 (5th Cir. 2005).
       3
        F   ED .   R. CIV . P. 50(a)(1).
       4
           

, 525 (5th Cir. 2009) (internal quotation marks and citation omitted).
       5
         

, 150–51, 

, 2110 (2000). Because this case was fully tried
to a jury, our focus is not on parsing evidence into a prima facie case and the constituent parts
of the ordinary burden shifting analysis, but rather on whether the evidence supports the
jury’s ultimate finding of retaliatory intent. See Rubinstein v. Adm’rs of the Tulane Educ.
Fund, 

, 402 (5th Cir. 2000).

                                                2
   Case: 08-11115    Document: 00511061103    Page: 3   Date Filed: 03/24/2010

                                 No. 08-11115

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.
      Viewed 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

                                       3
   Case: 08-11115    Document: 00511061103      Page: 4   Date Filed: 03/24/2010

                                  No. 08-11115

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.
      One 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.




                                        4
   Case: 08-11115      Document: 00511061103        Page: 5    Date Filed: 03/24/2010

                                     No. 08-11115

However, Smith was able to capture part of the message, which supports a
conclusion that Jankowski instructed the other employees not to assist Smith.6
      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.7
      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



      6
          The full message was never produced during discovery, and Xerox reported during
this litigation that Jankowski’s laptop computer that was used to send the message had
apparently been lost. The jury was certainly entitled to consider this evidence when
evaluating the credibility of Xerox and its witnesses.
       7
         For example, Xerox policies call for documentation of an employee’s unsatisfactory
performance before the first warning letter is issued and the employee is placed in the
disciplinary process. Smith’s personnel file contains no such documentation.

                                            5
   Case: 08-11115        Document: 00511061103          Page: 6     Date Filed: 03/24/2010

                                        No. 08-11115

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.8 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.9


       8
        The documents bear bates stamp numbers 949 and 953. Both bear the November 29,
2005 date, and both have a box checked “Scan for retention.” The check marks on the two
documents are not the same. Further, in the comments section of both there is a handwritten
message reading, “PIP EE = 80611Y.” However, the word “PIP” is different. In Bates number
949, the word is written as “PiP” with a lower case “i,” while in Bates number 953 the word
appears as “PIP,” with an upper case “I.”
       9
         

, 375 (5th Cir. 1969) (en banc) (stating that “it is the function of the jury
as the traditional finder of the facts, and not the Court, to weigh competing evidence and
inferences”), overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 

(5th Cir. 1997); see also Evans v. City of Houston, 

, 353–54 (5th Cir. 2001) (holding
that memorandum notifying employee of demotion and containing contradictory dates as to

                                                6
   Case: 08-11115      Document: 00511061103         Page: 7    Date Filed: 03/24/2010

                                      No. 08-11115

       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. 10              However, rather than seek
Smith’s explanation for the expenses, Jankowski issued the letter of concern
chastising Smith for her actions.
       Most 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




whether it was sent within probationary period or outside probationary period contributed to
fact issue as to whether employee suffered an adverse employment action, and therefore
summary judgment was improper).
       10
         Part of the mileage was for Smith’s travel to a customer and part was for travel to
a company sponsored conference. Charlene Fischer, the Regional Sales Manager for the
Central Region, testified that travel to a customer’s location could be reimburseable.

                                             7
   Case: 08-11115         Document: 00511061103        Page: 8    Date Filed: 03/24/2010

                                           No. 08-11115

it would look like Jankowski was lashing out or retaliating against Smith.
Villa’s testimony was tantamount to an admission of retaliation.11
       Xerox 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.12         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.13 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.14




       11
         Villa testified on cross-examination by Xerox’s counsel that he made a mistake in his
deposition insofar as he now recalled—at trial—that Jankwoski did discuss the letter of
concern with him before sending it to Smith. He also testified that he now remembered—at
trial—that Jankowski said he had already discussed the matter with Smith. The jury
obviously was not required to believe such self-serving testimony.
       12
            See 

.
       13
            

U.S. 53, 69, 

, 2415–16 (2006) (describing totality of circumstances
test for determining whether actions are retaliatory in a Title VII case, and noting that
“[c]ontext matters”).

                                                8
   Case: 08-11115         Document: 00511061103        Page: 9   Date Filed: 03/24/2010

                                         No. 08-11115

      Relying on Clark County School District v. Breeden, 15 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.” 16 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.17 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.18              Smith, unlike the plaintiff in Clark


      15
           

, 

(2001).
      16
           

121 S. Ct. at 1511.
      17
           

, 508 (5th Cir. 1994).
      18
           

08-11115        Document: 00511061103       Page: 10   Date Filed: 03/24/2010

                                        No. 08-11115

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.19
      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.20           An employer does not meet its burden of
demonstrating its affirmative defense merely by showing that its employment


      19
         

, 43 (5th Cir. 1992) (plaintiff who was fired two months after EEOC
complaint was dismissed proved retaliation not only from timing of termination but also by
showing she had no disciplinary history over nine-year employment, incidents for which she
was fired arose only after EEOC complaint had been filed, and supervisor had made
disparaging comments about her EEOC complaint).
      20
           

, 676 (5th Cir. 2000)

                                               10
  Case: 08-11115       Document: 00511061103         Page: 11     Date Filed: 03/24/2010

                                      No. 08-11115

decision would have been justified; instead, it must show that its legitimate
reason alone would have resulted in the same decision.21 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.22
We therefore conclude that the evidence was sufficient to support Smith’s claim
of retaliation.




       21
            

questioned by Smith’s counsel, Villa merely testified that he asked Jankowski
about the possibility of a job reassignment, but Jankowski said he was “pretty sure” nothing
was available. We do not think such fleeting testimony would compel a jury to conclude that
Xerox would have terminated Smith even without considering the EEOC charge. Villa
admitted there was no documentation that options beside termination were considered and
that Xerox never mentioned any other option to Smith. This is not to say that an employer
must always consider lesser actions prior to termination. We hold only that under the
circumstances of this case, and where the testimony shows that the employer ordinarily would
have considered termination as a last resort, the jury was not required to believe that Xerox
would have terminated Smith even without regard for the EEOC complaint.

                                             11