FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 April 5, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14441

Non-Argument Calendar

________________________

D. C. Docket No. 01-02038-CV-2-RDP

BARRY W. TUCKER, 

Plaintiff-Appellee, 

versus 

HOUSING AUTHORITY OF THE BIRMINGHAM DISTRICT, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(April 5, 2007)

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

This is a discrimination in employment case brought pursuant to Title VII of
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the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42

U.S.C. §§ 2000e-2(m) and 2000e-3. Barry W. Tucker claims that the Housing

Authority of the Birmingham District (“HABD”) discriminated against him on

account of his race, white, on two occasions: when it discharged him from his

position as assistant general counsel and when, in retaliation for his prosecution of

this case, it chose not to rehire him for a vacant attorney position after he had filed

this law suit. After the district court denied HABD’s motion for judgment as a

matter of law, the jury found for Tucker on both claims, awarding him $93,990 for

lost wages and benefits and $100,000 in mental-anguish damages. The district

court denied HABD’s renewed motion for judgment as a matter of law and for new

trial or, in the alternative, for a remittitur. HABD now appeals these rulings. We

affirm.

The evidence at trial established that Tucker was employed at HABD as an

assistant general counsel, under the direct supervision of the general counsel,

Naomi Truman, a black female. During the course of his employment, Tucker and

Truman had several disputes over the office’s leave and absence policies. In her

annual budget proposal submitted to HABD’s executive director, Ralph Ruggs, in

March 2000, Truman suggested that HABD eliminate one of two assistant general

counsel positions, and replace that position with two paralegals. Ruggs ratified
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the budget, and Tucker, the assistant general counsel with less seniority, lost his

job. Tucker then brought this law suit. After Tucker filed his complaint, the

remaining assistant general counsel, Faye Rosenbaum, resigned, and he applied for

the vacant position. He received no response from HABD about the vacancy for

several months, so he amended his complaint to add the retaliation claim

mentioned above. HABD eventually interviewed Tucker for the assistant general

counsel position, but notified him, after the interview, that the position would not

be filled. Ruggs, at the advice of Truman, withdrew the position because the

general counsel’s office was working efficiently with two paralegals and two

temporary attorneys who were hired to replace Rosenbaum. HABD later hired an

“associate counsel” at the same pay grade and with a nearly identical job

description as “assistant general counsel.” With these facts in hand, we consider

first HABD’s argument that the district court erred in denying HABD’s motion for

judgment as a matter of law, then its arguments that the court abused its discretion

in denying its motion for new trial or, alternatively, a remittitur. 

Judgment as a Matter of Law

We consider de novo a district court’s decision denying a motion for

judgment as a matter of law and, in doing so, apply the same legal standard as the

district court. Ledbetter v. Goodyear Tire and Rubber Co., Inc., 421 F.3d 1169,
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1177 (11th Cir. 2005), cert. granted, 126 S.Ct. 2965 (2006). As that standard

dictates, judgment as a matter of law is appropriate when “a party has been fully

heard on an issue and there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). We

review “the entire record, examining all evidence, by whomever presented, in the

light most favorable to the nonmoving party, and drawing all reasonable inferences

in the nonmovant’s favor,” we “will reverse the denial of judgment as a matter of

law only if the facts and inferences point overwhelmingly in favor of the movant,

such that reasonable people could not arrive at a contrary verdict.” Ledbetter, 421

F.3d at 1177 (internal quotation omitted). The denial of judgment as a matter of

law will be upheld so long as “reasonable and fair-minded persons in the exercise

of impartial judgment might reach different conclusions.” Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

Discrimination claim 

HABD argues that Tucker failed to prove that it intentionally discriminated

against him and that the court erred in finding that he presented “sufficient doubt

on the HABD’s proffered legitimate, nondiscriminatory reasons for its

employment actions, such that a jury reasonably could conclude that the proffered

reasons were not what actually motivated the HABD’s conduct.” HABD asserts
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that because Ruggs was the decision-maker, “it was essential for Tucker to present

evidence of Ruggs’ own racial or gender discriminatory animus to show that the

real reason motivating the decision to eliminate an assistant general counsel

position was discriminatory,” and that the court erred by concluding that Ruggs

was a mere conduit for the discriminatory animus attributable to Truman.

Congress has dictated that “an unlawful employment practice is established

when the complaining party demonstrates that race, color, religion, sex, or national

origin was a motivating factor for any employment practice, even though other

factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). After “the

defendant fails to persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff’s proof by offering evidence of the

reason for the plaintiff’s rejection . . . the inquiry should focus on the ultimate

question of whether the defendant intentionally discriminated against the plaintiff.” 

Collado v. United Parcel Service, Co., 419 F.3d 1143, 1150-51 (11th Cir. 2005)

(internal quotations omitted). This means that once the defendant puts forth its

case, we abandon the burden shifting framework derived from McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and “the case

is placed back into the traditional framework – in other words, the plaintiff still

bears the burden of proving, more probably than not, that the employer took an
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adverse employment action against him on the basis of a protected personal

characteristic.” Collado, 419 F.3d at 1150-51 (internal quotation omitted). 

We have recognized that the “‘cat’s paw theory” may be utilized by the

plaintiff to prove “that the discriminatory animus behind the recommendation

caused the discharge . . . if the plaintiff shows that the decision maker followed the

biased recommendation without independently investigating” the recommendation. 

Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). “In such a

case, the recommender is using the decision maker as a mere conduit, or ‘cat’s

paw’ to give effect to the recommender’s discriminatory animus.” Id. Essentially,

where the individual accused of discriminatory animus is “an integral part” of a

multi-level personnel decision, their improper motivation may “taint[ ] the entire . .

. process.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999). 

A plaintiff must also provide sufficient evidence that the decision-maker was

motivated by discriminatory animus “‘either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of credence.’” Combs v.

Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (quoting Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67

L.Ed.2d 207 (1981). Where “the defendant has proffered nondiscriminatory
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reasons for its actions,” the district court, in ruling on a motion for judgment as a

matter of law, “must, in view of all the evidence, determine whether the plaintiff

has cast sufficient doubt on the defendant’s proffered nondiscriminatory reasons to

permit a reasonable fact finder to conclude that the employer’s proffered legitimate

reasons were not what actually motivated its conduct.” Combs, 106 F.3d at 1538. 

“Whether judgment of 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, [and] the probative value of the proof that the employer’s explanation is

false. . . .” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49,

120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000).

After reviewing the trial transcript, we conclude that a reasonable jury could

find that Ruggs was a conduit by which Truman made an employment decision

motivated by her discriminatory animus. A reasonable jury could find that,

although Ruggs made the ultimate decision to approve the budget plan eliminating

an attorney position, he was merely endorsing Truman’s recommendation. 

Uncontroverted testimony indicated that Truman proposed the reorganization of

the legal department, and Truman admitted that at the time she proposed the

reorganization to Ruggs, she was aware that department policy dictated that

positions be eliminated on the basis of seniority and that Tucker was the less senior
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of the two assistant general counsels. The record also contains evidence that

Truman generally controlled the personnel decisions in her office. She testified

that Ruggs regularly approved her requested personnel decisions, including, when,

after Rosenbaum resigned and the office was using temporary attorneys, Ruggs

chose not to hire a permanent employee based on Truman’s recommendation that

the department was running efficiently. 

A reasonable jury could also find that Truman was motivated by racial

animus when she issued the budget proposal calling for the elimination of Tucker’s

position and that the alternative explanations given by HABD, cost-savings and

efficiency, were “not what actually motivated its conduct.” Combs, 106 F.3d at

1538. Tucker testified that he felt he was scrutinized more closely by Truman

because of his race, and that in one instance, she called him a racist, which he felt

was derogatory. Other witnesses testified to comments Truman made that could be

taken as evincing racial animus. Truman was critical of the friendship between an

African-American paralegal, and Rosenbaum, who is white, asking the paralegal,

why she had “so much in common with white people,” and telling her that she

“was the only black that [Rosenbaum] talks to.” Rosenbaum felt that Truman

considered the office as being divided along racial lines when Truman told her that

“she was on to [Tucker] and I and she knew that we were teamed up against her. . .
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.” Not only could a jury have found that Truman possessed a racial animus, it

could also find that the reasons HABD provided for eliminating Tucker’s position

did not motivate the decision. Truman did not conduct a financial analysis of her

budget proposal, and Ruggs, the executive director who approved the budget,

could not explain how the reorganization saved HABD any money. Truman had

consistently asked for measures that would enable the office to run more

efficiently, but was willing to staff an office of rotating paralegals and temporary

attorneys in lieu of Tucker. In addition, Tucker was not offered a position as a

paralegal after his position was cut from the budget, even though the parties

stipulated that he was eligible for rehire. 

Retaliation claim

HABD argues that Tucker failed to show that he suffered an adverse

employment action, because nobody was hired to fill the vacant assistant general

counsel position, and failed to provide evidence that discredited HABD’s

articulated reason for not rehiring him, which was that the office worked efficiently

with the temporary attorneys. Title VII provides that “[i]t shall be an unlawful

employment practice for an employer to discriminate against any . . . applicant for

employment . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified,
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assisted, or participated in any manner in an investigation, proceeding, or hearing

under this subchapter.” 42 U.S.C. § 2000e-3(a). To satisfy his burden of proof, “a

plaintiff must show that (1) he engaged in statutorily protected expression; (2) he

suffered an adverse employment action; and (3) there is a causal connection

between the two events.” Shannon v. Bellsouth Telecommunications, Inc., 292

F.3d 712, 715 (11th Cir. 2002) (internal quotation omitted). Should a plaintiff

meet that three-part assessment, the employer is afforded the opportunity “to

produce legitimate reasons for the adverse employment action,” however, the

burden remains with the plaintiff to prove by a preponderance of the evidence that

the offered reasons were pretext. Id. In retaliation cases, “an employer can avoid

liability if it can prove that it would have made the same disputed employment

decision in the absence of the alleged bias.” Pennington v. City of Huntsville, 261

F.3d 1262, 1269 (11th Cir. 2001). 

Neither party challenges the notion that Tucker engaged in a statutorily

protected expression by filing his discrimination claim; therefore, the question

becomes whether HABD engaged in an adverse employment action and, if so,

whether his discrimination claim was the cause of such action. 

An adverse employment action “must either be an ultimate employment

decision or else must meet some threshold level of substantiality.” Stavropoulos v.
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Firestone, 361 F.3d 610, 616-17 (11th Cir. 2004) (internal quotation omitted). We

have noted that failure to hire an individual is an example of an ultimate

employment decision. Id. at 617. A causal connection between the protected

activity and the adverse employment action can be proven by presenting evidence

that “the decision-makers were aware of the protected conduct, and that the

protected activity and the adverse actions were not wholly unrelated.” Shannon,

292 F.3d at 716 (internal quotation omitted). It is essential that the plaintiff prove

that the “person taking the adverse action was aware of the protected expression.” 

Bass v. Board of County Com’rs, Orange County, Fla., 256 F.3d 1095, 1119 (11th

Cir. 2001). Circumstantial evidence, such as a “[c]lose temporal proximity between

the protected activity and the adverse action may be sufficient to show that the two

were not wholly unrelated.” Id. 

The jury had sufficient evidence before it on which to find that Tucker

suffered an adverse employment action as a result of filing his racial discrimination

lawsuit. While HABD did not hire an “assistant general counsel” to replace

Rosenbaum, it did later hire an “associate counsel,” whose job description was

essentially the same as that of assistant general counsel, at the same salary grade. 

Moreover, Tucker was interviewed by a four person panel, three of whom knew

about the lawsuit. Ruggs testified that the panel recommended that another
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individual be hired because Tucker was unresponsive in his interview; however,

other evidence indicated that the questioning was hostile and regarded the lawsuit. 

A jury could reasonably find that HABD refused to rehire Tucker because of the

protected activity in which he was engaging; hence, the district court properly

denied HABD’s motion for judgment as a matter. 

Motion for New Trial

HABD argues that the district court abused its discretion in refusing to grant

it a new trial due to an evidentiary error. It asserts that the court improperly

allowed the jury to consider a pre-trial, partial motion to dismiss in which it

submitted that Tucker “should not be able to simultaneously seek reinstatement as

a remedy and apply for open positions with the HABD,” and requested an order

“[d]irecting submission of [Tucker] to withdraw his application for employment

thus submitting his reinstatement claim to the [c]ourt pending the verdict of the

jury, vesting all authority over plaintiff’s reinstatement in the [c]ourt.” HABD

contends that this challenged evidence was extremely prejudicial because the

motion represented the only evidence of its retaliatory intent.

The denial of a motion for new trial by the district court is reviewed for

abuse of discretion. Lipphardt v. Durango Steakhouse, 267 F.3d 1183, 1186 (11th

Cir. 2001). A district court may grant a new trial “for any of the reasons for which
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new trials have heretofore been granted in actions at law in the courts of the United

States.” Fed. R. Civ. P. 59(a). “Because it is critical that a judge does not merely

substitute his judgment for that of the jury, new trials should not be granted on

evidentiary grounds unless, at a minimum, the verdict is against the great–not

merely the greater–weight of the evidence.” Lipphardt, 267 F.3d at 1186 (internal

quotation omitted).

The Federal Rules of Evidence declare that “[a] statement is not hearsay if

the statement is offered against a party and is the party’s own statement, in either

an individual or a representative capacity. . .” Fed. R. Evid. 801(d)(2)(A). The

Rules define a “statement” as “an oral or written assertion . . . if it is intended by

the person as an assertion,” and note that “[i]t can scarcely be doubted that an

assertion made in words is intended by the declarant to be an assertion.” Fed. R.

Evid. 801(a), and advisory committee’s note. A statement made in a brief filed by

a party may be considered as an admission of fact. Young & Vann Supply Co. v.

Gulf, Florida & Alabama Railway Co., 5 F.2d 421, 423 (5th Cir. 1925). Absent

necessary exceptions for inconsistent pleas and complicated joinder scenarios,

“[a]s a general rule the pleading of a party made in another action, as well as

pleading in the same action which have been superseded by amendment,

withdrawn or dismissed, are admissible as admissions of the pleading party to the
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facts alleged therein.” Cont’l Ins. Co. of New York v. Sherman, 439 F.2d 1294,

1298 (5th Cir. 1971). The Second Circuit, expanding on that concept, has ruled

that “statements made by an attorney concerning a matter within his employment

may be admissible against the party retaining the attorney.” Purgess v. Sharrock,

33 F.3d 134, 144 (2nd Cir. 1994).

Because the partial motion to dismiss was an admission made by HABD’s

attorneys prior to trial, the district court did not abuse its discretion in admitting the

evidence and thereafter in denying HABD a new trial.

Motion for Remittitur or for a New Trial on the Issue of Damages

HABD argues that the mental anguish damages awarded by the jury were

not supported by the evidence; accordingly, the court should have ordered a

remittitur or a new trial on the issue of damages.

A district court’s denial of a motion for remittitur or a new trial on the issue

of damages is reviewed for “a clear abuse of discretion.” Middlebrooks v.

Hillcrest Foods, Inc., 256 F.3d 1241, 1249 (11th Cir. 2001). An award of damages

that has been reviewed and upheld by the trial judge is entitled to a presumption of

validity. Ferrill v. The Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999). 

We are “particularly deferential to the fact finder’s determination of

compensatory damage awards for intangible, emotional harms because the harm is
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so subjective and evaluating it depends considerably on the demeanor of the

witnesses.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1315 (11th Cir. 2001)

(internal quotation omitted). Unlike special damages, however, general

compensatory damages “need not be proven with a high degree of specificity” and

“may be inferred from the circumstances as well as proved by the testimony.”

Akouri v. Florida Dep’t of Transportation, 408 F.3d at 1345. “A plaintiff’s

testimony, standing alone, can support an award of compensatory damages for

emotional distress based on a constitutional violation,” but “the testimony must

establish that the plaintiff suffered demonstrable emotional distress, which must be

sufficiently articulate; neither conclusory statements that the plaintiff suffered

emotional distress nor the mere fact that a constitutional violation occurred

supports an award for compensatory damages.” Id. 

At trial, Tucker relied solely on his own testimony to prove emotional

damages. His testimony amounted to sufficiently articulated episodes of emotional

distress from which a jury could award compensatory damages. Tucker testified

that his relationship with his family suffered because of depression and anxiety. 

He felt humiliated having to explain his unemployment to a neighbor who noticed

that his car was at home more frequently than usual. To avoid alarming his young

daughter, he would pretend to go to work. He also told the jury of physical effects,
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such as digestive problems and an inability to sleep. Given the evidence before the

jury, we would be hard pressed to hold that the court abused its discretion in

refusing to grant a new trial or order a remittitur.

AFFIRMED.