IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-20124

BEVERLY THOMAS,

Plaintiff-Appellee,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

July 25, 2000

Before KING, Chief Judge, REAVLEY, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Texas Department of Criminal Justice, Institutional Division (“TDCJ”) appeals a jury verdict

in favor of Beverly Thomas (“Thomas”) on her claims of racial and gender discrimination, and

retaliation. For the following reasons, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

Thomas began working for TDCJ in 1979 at the Gatesville Unit. In 1985, she was promoted

to Sergeant of Correctional Officers. Then, in 1993, she was transferred to Estelle Unit in Huntsville,

Texas. In July 1995, Thomas was promoted to Lieutenant of Correctional Officers, and assigned to2

work with high security prisoners. Shortly after she was promoted to lieutenant, Thomas requested

housing at Estelle Unit. According to the TDCJ benefit policy certain classifications of employees,

including lieutenants, are allowed to live in state-owned housing rent free. The housing policy states

that the residential housing is made available to insure the immediate availabilit y of essential personnel

in times of emergency.

Thomas first requested housing from Warden Fred Becker (“Becker”). Thomas testified that

Becker told her he would like to give her a house, but they were all under major renovation. Thomas

testified that at Becker’s suggestion, she wrote a letter a sking to be placed on a waiting list for a

house. In February 1996, Fred Figueroa (“Figueroa”) became Warden of Estelle Unit. Thomas met

with Figueroa and requested that she be assigned housing. Figueroa asked Thomas whether she was

married or had children. Thomas told him that she was single and all o f her children were adults.

Figueroa then

informed her that her chances of getting a house were slim to none because he would

place families into a house before a single person. When Thomas asked him why he preferred families

over single persons, Figueroa informed her that it was his “policy” to make housing arrangements in

this manner. In June 1996, Thomas filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”), stating that TDCJ had denied her housing on the basis of her gender.

In November 1996, Thomas applied for a promotion to Captain of Correctional Officers. She

was denied the promotion in December 1996 and January 1997. Three white males were hired to fill

the three Captains of Correctional Officers positions. In April 1997, Thomas filed a second EEOC

charge stating that she had been denied the promotion to Captain due to discrimination on the basis

of race and gender, and retaliation.3

In February 1997, Thomas brought suit against TDCJ in federal court alleging discrimination

in TDCJ’s den i al of her request for housing and its failure to prom ote her. Thomas offered an

amendment to the pretrial order which was allowed by the district court w hich added racial

discrimination to her charge of gender discrimination regarding the denial of housing. In February

1998, TDCJ placed Thomas in a house at Estelle Unit. Fo llo wing a jury trial, the jury found that

Thomas had established by a preponderance of the evidence that TDCJ discriminated against her on

the basis of race and gender in its decision not to provide housing to Thomas until February 1998.

The jury further found that TDCJ discriminated against Thomas in its decision not to prom ote her to

Captain of Correctional Officers. Finally, the jury found that TDCJ retaliated against Thomas by

failing to promote her to Captain of Correctional Officers. The jury awarded Thomas $107,000 in

compensatory damages. The district court entered final judgment awarding Thomas that amount in

compensatory damages, back pay based on the salary adjustment for a Captain, and attorneys’ fees.

The district court also entered an inte rim injunction that prohibited TDCJ and agents or

representatives from any further racial or gender discrimination against Thomas, ordered that Thomas

be transferred away from Estelle Unit to insure that no physical harm or retaliation occurred, and also

ordered that upon her reassignment Thomas be assigned to an appropriate state house. In its final

order, the district court entered an injunction prohibiting TDCJ’s Director, Warden or designees from

“directly or indirectly establishing a housing policy contrary to state or federal law mandates that a

no harassment policy coupled with a preventive system that is sensitive to gender discrimination and

retaliation be implemented.”

DISCUSSION4

TDCJ argues on appeal th at t he district court erred in failing to grant its post-judgment

motion styled “renewed motion for judgment as a matter of law and alternative motion for new trial.”

TDCJ further conten ds t hat the district court made several erroneous evidentiary and other trial

rulings that resulted in TDCJ receiving an unfair trial. TDCJ also argues that the district court erred

in its charge to the jury by including racial discrimination in the jury interrogatory on housing, and

by referring to housing as an emolument in the jury charge. Finally, TDCJ contends that the tri al

court erred in entering a permanent injunction against TDCJ.

I. Judgment as a Matter of Law and Alternative Motion for New Trial

A. Standard of Review

TDCJ challenges the district court’s denial of its renewed post judgment motion for judgment

as a matter of law, and its alternative motion for a new trial. This court reviews a motion for new

trial for abuse of discretion. S ee Keller Richards Manufacturing Co.

, 817 F.2d 1197 (5 th Cir. 1987).

We review a district court's denial of a motion for judgment as a matter of law de novo. See Scott

v. University of Mississippi

, 148 F.3d 493, 504 (5 th Cir. 1998) (citing Travis v. Board of Regents of

the Univ. of Tex. Sys.

, 122 F.3d 259, 263 (5 th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1166,

140 L.Ed.2d 176 (1998)). "A motion for judgment as a matter of law ... in an action tried by jury is

a challenge to the legal sufficiency of the evidence support ing the jury's verdict." H arrington v.

Harris

, 118 F.3d 359, 367 (5 th Cir.1997) (internal quotati ons and citation omit t ed). If reasonable

persons could differ in their interpretation of the evidence, then the motion should be denied.

Baltazor v. Holmes

, 162 F.3d 373, 373 (5 th Cir. 1998). A post-judgment motion for judgment as a

matter of law should only be granted when “the facts and inferences point so strongly in favor of the

movant that a rational jury could not reach a contrary verdict.” Waymire v. Harris County, Texas

,5

86 F.3d 424, 427 (5 th Cir. 1996). We accord great deference to the jury’s verdict when evaluating

the sufficiency of the evidence, viewing all the evidence and drawing all reasonable inferences in the

light most favorable to the verdict. R hodes v. Guiberson Oil Tool s

, 75 F.3d 989, 993 (5 th Cir.1996)

(en banc) (quoting Boeing Co. v. Shipman , 411 F.2d 365, 374 (5 th Cir. 1969) (en banc), overruled

on other grounds).

Under the McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36

L.Ed.2d 668 (1973) framework, the p laint iff must first establish a prima facie case by a

preponderance of the evidence; once established, the prima facie case raises an inference of unlawful

discrimination. T exas Dep't. of Community Affairs v. Burdine

, 450 U.S. 248, 252-53, 10 1 S.Ct.

1089, 1093, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the defendant to proffer

a legitimate, nondiscriminatory reason fo r t he challenged employment action. S t. Mary’s Honor

Center v. Hicks

, 509 U.S. 502, 507, 113 S.Ct. 2742, 274 7, 125 L.Ed. 2d 407 (1993). If the

defendant meets its burden, the presumption raised by the plaint iff's prima facie case disappears.

Burdine

, 450 U.S. at 255 n.10. The plaintiff is accorded the opportunity to demonstrate that the

defendant's articulated rationale was merely a pretext for discrimination. S ee Hicks

, 509 U.S. at 507-

08; Burdine

, 450 U.S. at 253. However, in a case such as this one when there has been a trial on

the merits, we need not address the sufficiency of the prima facie case, but instead we will proceed

to the ultimate question of whether the plaint iff presented enough evidence for a jury to find that

discrimination occurred. Baltazor , 162 F.3d at 373 (citing Harrington , 162 F.3d at 367).

B. Failure to Promote

TDCJ argues that there was not sufficient evidence presented for a reasonable juror to find

that TDCJ engaged in racial and gender discrimination wh en it failed to prom ote Thom as to the1 In its reply brief to this court TDCJ states that “the undisputed evidence in the record is that

the Captain position did not require 30 college credit hours and no official document stated such.”

Defendant’s trial exhib it 11 which is a TDCJ position description for Captain of Corrections lists

under the heading “minimum qualifications” 30 semester hours fro m an accredited college or

university.

6 position of Captain of Correctional Officers. Thomas sought promotion to this position in December

1996 and Janu ary 1997. The posting for the position stated the minimum qualifications for the

p o sit ion. These qualifications included four years full-time correctional custody/law enforcement

experience, two years of supervisor position experi ence, at least one year of mid-level manager

experience, and 30 semester hours from an accredited college or university. The posting also stated

that cultural diversity and sensitivity training was preferred.

Ultimately, three wh it e male officers were promoted to the position of Captain. At trial

Thomas demonstrated that she met all of the qualifications for the position including over 15 years

of expe rience as a correctional officer, ten years as a sergeant, one and a half years of mid-level

supervisory experience, and the required college hours. Thomas also presented evidence that she had

completed her cultural diversity and sensitivity training. There was ample testimony from various

correctional officers and administrators at TDCJ who testified that Thomas had an excellent record.

One fellow officer testified that he had never worked with anyone he felt would be a better Captain.

TDCJ argues that Thomas was less qualified because the three white males promoted all had more

mid-level supervisory experience, and gave better answers at the in t erview. Thomas presented

counter evidence showing that one of the officers who was ultimately prom oted represented on his

application that he had only 18 hours of college credits, and the minimum qualifications stated that

30 hours of college credit were required. 1 One of the other officers who was ultimately prom oted

stated on his application that he had 38 hours of college credit, and his transcript ultimately showed2 Thomas also plead that she experienced “ongoing retaliation” by being assigned perimeter

check at night, receiving formal discipline, and being assigned a ho use which was in unlivable

condition. However, to form the basis of a retaliation claim, the adverse employment action taken

must be an “ultimate emplo yment decision.” M attern

, 104 F.3d at 707. An ultimate employment

decision includes acts such as hiring, granting leave, discharge, promotion and compensation. I d.

Therefore, we will only consider TDCJ’s failure to promote Thomas, and its refusal to transfer her

to other positions as acts that form the basis of her retaliation claim.

7 he had completed only 32 hours. Therefore, although we acknowledge that there was co nflict ing

evidence presented to the jury regarding TDCJ’s failure to prom ote Thomas, ultimately we conclude

that Thomas presented evidence of sufficient force and persuasiveness to allow a reasonable juror to

conclude that TDCJ engaged in gender and racial discrimination.

C. Retaliation

To establish a retaliation claim, the pla int iff must establish: (1) the employee engaged in

activity protected by Title VII; (2) the employer too k adverse employment action against the

employee; and (3) a causal connection exists between that protected activity and t he adverse

employment action. Mattern v. Eastman Kodak , 104 F.3d 702, 705 (5 th Cir. 1997). The ultimate

question in an unlawful retaliation case is whether the defendant discriminated against that plaintiff

because she engaged in conduct protected by Title VII. L ong v. Eastfield College

, 88 F.3d 300, 304

n.4 (5 th Cir. 1996). Thomas engaged in protected activity by filing two EEOC claims against TDCJ

for failure to provide her with housing and failure to prom ote her to Captain of Correctional Officers.

Thomas plead that since her EEOC complaints, she was unable to transfer out of Estelle Unit or be

prom oted. 2 Thomas presented several incidents as circumstantial evidence that TDCJ was engaging

in retaliation against her. First, Thomas presented evidence that when she was ultimately given a

house in February 1998, t he ho use was in deplorable condition. Upon inspection of the house,

Thomas and others who accompanied her testified that the house had kitchen cabinets torn off, stains8

from dog feces on the carpet, and filthy bathrooms. Thomas also presented evidence that after her

EEOC charges she was disciplined twice, and she had never received any disciplinary actions in the

18 years prior to the filing of her charges. Thomas also presented evidence that one of her superiors

shouted at her about her filing grievances against TDCJ. Although, these incidents occurred after

Thomas applied for promotio n, t hey occurred during the time period in which she applied for

transfers. The jury could properly consider these incidents as indications of TDCJ’s motives in their

failure to prom ote or transfer Thomas. Thus, Thomas presented sufficient evidence for a reasonable

juror to conclude that TDCJ failed to prom ote or transfer her b ecause she engaged i n protected

activity.

II. Evidentiary Rulings

We review the district court's evidentiary rulings for abuse of discretion, and we will reverse

on the basis of evidentiary errors only if they resulted in substantial prejudice. S ee Bennett v. Pippin

,

74 F.3d 578, 589 (5 th Cir. 1996) (citing Smith v. Wal-Mart Stores (No. 471)

, 891 F.2d 1177, 1180

(5 th Cir.1990).

A. Amendment of Pretrial Order

TDCJ argues that the district court erred in allowing Thomas to amend her pretrial order to

include a charge of racial discrimination regarding TDCJ’s failure to provide her with housing. A trial

court has broad discretion in determining whether a pretrial order should be modified or amended.

In the Matter of

: El Paso Refinery , 171 F.3d 249, 255 (5 t h Cir. 1999). The EEOC charge filed by

Thomas after she was denied state-owned housing only alleged sex discrimination. In her SecondAmended Complaint Thomas’s only allegation regarding the housing claim was that TDCJ refused

to provide her with housing on the basis of sex. On the fifth day of a six day trial Thomas moved to3 The trial court’s error in allowing the amendment to the pretrial order only affects Thomas’s

housing claim. Thomas filed a separate EEOC charge in April 1997which co mplained of TDCJ’s

failure to prom ote her to Captain. Thomas checked the boxes indicating that she believed she had

been denied the promotion based on her gender, race, and retaliation. The jury was asked separate

interrogatories on the housing, failure to prom ote, and retaliation claims. Thus, the error on the

submission of race as part of the housing claim does not effect the failure to prom ote, and retaliation

claims.

9 file a Third Amended Complaint and an amendment to the pretrial order to reflect that her housing

claim was based on both gender and race discrimination. The district court held that Thomas’s Title

VII claim would have been within the scope of an EEOC investigation into Thomas’s init ial gender

charge and granted the motions. At the close of evidence the jury was submitted four different

interrogatories. The first asked whether TDCJ discriminated against Thomas by denying her housing

on the basis of her race and gender.

The scope of a Title VII complaint is limited to the scope of the EEOC investigation which

can reasonably be expected to grow out of the charge of discrimination. Y oung v. City of Houston

,

906 F.2d 177, 179 (5 th Cir. 1990) (citing Sanchez v. Standard Brands

, 431 F.2d 455, 466 (5 th Cir.

1970)). In the present case, the EEOC charge dealing with housing only alleged gender as the theory

of discrimination, not race. After carefully reviewing the chronology of events and the facts in this

case, we conclude that the district court’s ruling that Thomas’s lat er asserted race claim was

necessarily encompassed in her gender claim on housing, is unsupported by the exhibits and testimony

in the record. Thus, the district court abused its discretion in allowing an amendment to the pretrial

order to include race discrimination in the housing charge. 3

B. Other Evidentiary Rulings

TDCJ contends that the district court err ed o n many evidentiary matters including: (1)

allowin g Tho mas’ sister to testify about housing practices at other TDCJ facilities, while barring10

Figueroa f

ro m t estifying about other TDCJ units; (2) allowing references to a previous case

concerning race and gender discrimination at TDCJ; (3) Allowing testimony of a witness about what

she wrote for another employee in an EEOC comp laint; (4) allowing Thomas to testify regarding

being required to inspect the outside grounds of the prison at night; (5) allowing Thomas to testify

about a superior yelling at her; (6) allo wing Tho mas to testify that she received two disciplinary

reports in 1998; and (7) excluding testimony of a maintenance worker as to the condition of the house

Thomas was assigned. TDCJ objected to Thomas’s testimony on these various subjects as irrelevant

and immaterial. TDCJ also argues that these rulings as a whole unfairly prejudiced TDCJ. After a

careful review of each of these evidentiary rulings by the trial court, we are satisfied that the district

court did not abuse its discretion, and that the defendants suffered no substantial prejudice from the

court’s rulings.

III. Jury Charge

The district court has broad discretion in formulating the jury charge, and we therefore review

the instructions with deference. D eines v. Texas Department of Protective and Regulatory Services

,

164 F.3d 277, 279 (5 th Cir. 1999) (citations omitted). Accordingly, a challenge to jury instructions

"must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether the

jury has been properly guided in its deliberations." I d. (citing M ooney v. Aramco Services, Co.

, 54

F.3d 1207, 1216 (5 th Cir.1995)). However, even erroneous jury instructions will not require reversal

if based upon the entire record the challenged instruction could not have affected the outcom e of the

case. Id.

TDCJ argues that the district court erred in its jury instructions by: (1) including the issue of

race in regards to plaint iff’s housing claim; (2) referring to housing as a “an emolument and therefore11

privilege of employment”; and (3) failing to instruct the jury on Thomas’s duty to mitigate damages.

We have concluded above that the district court did err in amending the pretrial order to include a

charge of racial discrimination in housing, therefore, the district court also erred by including race in

the jury charge.

IV. Permanent Injunction

TDCJ argues that the district court erred by entering a permanent injunction against TDCJ.

We review the district court's decision to permanently enjoin Act 1254 for an abu se of discretion.

Causeway Medical Suite v. Ieyoub

, 109 F.3d 1096, 1102 (5 th Cir. 1997) (citing North Alamo Water

Supply Co rp. v. City of San Juan , 90 F.3d 910, 916 (5 t h Cir.1996)). "The district court abuses its

discretio n if it (1) relies on clearly erroneous factual findings when deciding to grant or deny the

permanent injunction, (2) relies on erroneous conclusions of law when deciding to grant or deny the

permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive

relief." North Alamo Water , 90 F.3d at 916-17.

The district court’s final judgment included an injunction which stated that “the Court enjoins

the Director, Warden or designees from directly or indirectly establishing a housing policy contrary

to state or federal law mandates that a no harassment policy coupled with a preventative system that

is sensitive to gender discrimination and retaliation be implemented.” Because the injunction pertains

to the housing claim and relies on the jury verdict entered a ft er the erroneous amendment of the

pretrial order and jury instruction on this claim, the injunction was erroneously entered and is vacated.

CONCLUSION

We hold that the plaint iff, Beverly Thomas, presented sufficient ev idence to allow a

reasonable jury to conclude that TDCJ engaged in racial and gender discrimination in its failure to12

prom ote Thomas to Captain, and that TDCJ also engaged in retaliation. Therefore, the district court

properly denied TDCJ’ s renewed motion for judgment as a matter of law. We also hold that the

district court erred in allowing the plaint iff to amend the pretrial order, and in its formulation of the

jury charge o n t he ho using claim. Thus, the judgment on the housing claim is REVERSED, and

REMANDED for trial consistent with this opinion. This finding requires us to VACATE the

permanent injunction and the award of compensatory damages. Thomas’s status as a prevailing party

for the purpose of attorneys’ fees is undisturbed due to the jury’s verdict on failure to prom ote and

retaliation, however, due to our split disposition on the merits of this case we REMAND the award

of attorneys’ fees for adjustment based on the findings in this opinion. Finally, the award of back pay

was made based on TDCJ’s failure to prom ote Thomas to Capt ain, t hus the award of back pay is

AFFIRMED.